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DACA Lives to See Another Day: Now What? - June 18, 2020

Today, the United States Supreme Court ruled that the Department of Homeland Security (DHS) acted improperly when rescinding the Deferred Action for Childhood Arrivals (DACA) program, which protects recipients from deportation and provides work authorization. The consequences of rescinding the program were addressed in a prior blog post by Lori Chesser.


The decision

This decision is a major victory for the over 700,000 DACA recipients residing in the U.S., many of whom are medical professionals working on the frontlines of the COVID-19 response. The Supreme Court’s decision does not entirely put DACA in the clear—the Court did not rule on the legality of DACA, but rather, the legality of the action taken to rescind DACA. In reviewing the actions of the Trump Administration, the Court concluded that the way in which the government rescinded DACA violated the Administrative Procedure Act and was arbitrary and capricious due to the government’s failure to provide adequate justification for ending the program. The Court noted, “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.”


Possible next steps impacted by politics

This decision does not prohibit DHS from attempting to rescind the program again by addressing the deficiencies noted by the Court and providing a more detailed reasoning. It is possible that the Trump Administration will decide to not take further action to end DACA during an election year due to the popularity and support for the program. On the other hand, historically high unemployment caused by COVID-19 could provide the reason needed to again rescind the program. We must still call on members of Congress to provide a permanent solution for DACA recipients and dreamers.


DACA applications and renewals

The Supreme Court’s decision fully reinstates the DACA program. This means that DACA applications will no longer be limited to renewals, and those who are eligible for DACA, but have not previously applied, will now be able to do so. Additionally, DACA recipients may, in some situations, apply for advanced parole, potentially allowing adjustment of status in the U.S. after travel and re-entry. This action should not be taken without advice from a competent immigration attorney. Keep in mind, it will likely take some time for DHS to open its DACA policies for new applications and advanced parole requests, consistent with today’s decision.


For further information about what the Supreme Court decision means for your specific situation, please contact an immigration attorney.


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