The Supreme Court Grants a Stay for DACA

DACA lives on, for now! The U.S. Supreme Court held this past week that the Department of Homeland Security arbitrarily and capriciously rescinded the Deferred Action for Childhood Arrivals (DACA) program.

The holding is a narrow one. The Court said there is no question that DHS can rescind DACA; the agency just went about it the wrong way. Nevertheless, this is great news for DACA beneficiaries, as this decision may be enough to carry the issue to election day in November. Surely the Court knew the delay would have these political implications, aside from the legal analysis.

Advocates are already working on getting DACA clinics going again. It is important that DACA recipients and prospective applicants seek legal advice before filing for extensions or new benefits. USCIS is not a friendly agency these days–more on this below. The Immigrant Legal Resource Center, the National Immigration Law Center, and the Northwest Immigrant Rights Project are a few good resources for the latest on-line information for DACA applicants. We are also available for consultation.

A bit of background on the program, to place the decision in context. DACA is a deferred prosecution program set up in 2012 to benefit those who entered unlawfully as children, and for children who overstayed. DACA recipients are commonly referred to as DREAMers, after a piece of legislation which was introduced to address their circumstance. Approximately 700,000 persons have directly benefited from the program, which provides deferred action on removal, temporary work authorization, and travel authorization. Countless employers and families have indirectly benefited. DREAMers are present in every employment sector—education, health care, government—you name it. These individuals have grown up in the United States, received education here, and consider the U.S. their home. Most of them are now in their 20s to late 30s.

I think it is fair to say many immigration attorneys did not expect the decision to go this way, based on oral argument and other observations of the Supreme Court. Oral argument was tough, and the Supreme Court now has a conservative tilt. Chief Justice Roberts was the deciding vote, joining with the liberal bloc of Justices Ginsburg, Sotomayor, Kagan, and Breyer.

The decision, entitled Department of Homeland Security v. Regents of University of California, is fundamentally an Administrative Procedures Act (APA) decision. Chief Justice Roberts, writing for the 5-4 majority, said that rescinding the program, without consideration of alternatives, was arbitrary and capricious and violated the APA. Since DACA recipients held affirmative benefits (work authorization cards, travel documents), canceling the program was more than just an exercise in prosecutorial discretion. Alternative approaches to full rescission need to be considered under the APA, even if they are not ultimately followed. 

Chief Justice Roberts authored the decision. I can’t help but note that he was also the deciding vote in the Affordable Care Act case a few years back, another controversial case, which was similarly deemed a “setback” to the Trump Administration.  While framed as an APA decision, Justice Roberts is certainly aware of the bigger picture, as far as DREAMers and Washington D.C. power goes. He also is a Bush appointee, who in turn is no fan of Trump.  I found it interesting that among the decisions to author this term, Roberts chose this one for himself.  As Chief Justice, he can assign authorship for those cases where his in the majority. I wonder what the decision would have looked like, if authored by Justices Ginsburg or Sotomayor? We get some sense from Justice Sotomayor’s concurrence and dissent, in parts, wherein she references infamous anti-Mexican statements made by President Trump when he was campaigning.

The decision has been headline news for the past few days, as it should. I personally get really frustrated when it comes to the DREAMers’ plight. I’ve been following this immigration issue for 20 years, and we’ve made no legislative progress. In 2001, I recall visiting my Congressional representative to discuss a proposed bill in Congress to provide relief for this group. In 2012, when I was the Washington State Chair for our AILA Chapter, I spoke at a press conference with other community groups, heralding the rollout of the DACA program.  I have watched several bills gain support but ultimately fail over the years. I have also volunteered at clinics and met may DREAMers, hearing their stories. The DREAMers are some of the most passionate advocates you will ever find, and their concerns are so fundamental. I just want to see Washington D.C. help this group. It is hard to imagine living here, under threat of deportation, all your life.

After the decision was announced, U.S. Citizenship and Immigration Services took the very strange step of issuing a press release, declaring, “Today’s court opinion has no basis in law.”  Perhaps USCIS needs to have another agency manage the civics questions on naturalization applications, as the agency doesn’t seem to understand the High Court’s role in law. The agency’s statement is worthy of judicial notice, when considering all court cases involving this agency. Here it is:

USCIS Statement on Supreme Court’s DACA Decision

Release Date: June 19, 2020 

WASHINGTON — U.S. Citizenship and Immigration Services Deputy Director for Policy Joseph Edlow issued the following statement on today’s Supreme Court decision on the Deferred Action for Childhood Arrivals program:

Today’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program. 

“DACA was created through an Executive Branch memorandum after President Obama said repeatedly that it was illegal for him to do so unilaterally and despite the fact that Congress affirmatively rejected the proposal on multiple occasions. The constitutionality of this de facto amnesty program created by the Obama administration has been widely questioned since its inception. The fact remains that under DACA, hundreds of thousands of illegal aliens continue to remain in our country in violation of the laws passed by Congress and to take jobs Americans need now more than ever. Ultimately, DACA is not a long-term solution for anyone, and if Congress wants to provide a permanent solution for these illegal aliens it needs to step in to reform our immigration laws and prove that the cornerstone of our democracy is that presidents cannot legislate with a ‘pen and a phone.”

The statement is both political and disingenuous. Sadly, DACA recipients are cast by USCIS as “illegal aliens,” rather than as the humans they are, who have lived in the U.S. all their lives, and who in many cases are essential workers. It is downright shameful the way the government attempts to dehumanize DREAMers, who may well be working in the hospital ICUs fighting COVID, teaching students remotely, and working in local governments, to name a few common DACA occupations. And they have families now. I also find it ironic that USCIS says Presidents can’t legislate with “pen and phone”, since President Trump has been doing just that with immigration since his first day in office. Witness the Muslim bans, the various travel bans, this DACA rescission, and the rescission of temporary protected status for some 300,000 individuals. The President’s use of executive orders and proclamations have prompted law schools to teach new courses on the extent of presidential authority. Overall, this comment by an agency on a Supreme Court decision is just downright strange.

The agency is correct on one point though: Congressional action is needed now more than ever. 

Bottom line:  the DACA story continues, and good news is always welcome. I am hopeful for the future.