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Supreme Court Blocks DACA Termination
Gabriela Ungo • Jun 20, 2020
On June 18, 2020, the U.S. Supreme Court ruled that Department of Homeland Security's (DHS) decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act (APA).
Background
On September 5, 2017, the Trump Administration rescinded the DACA program and following the rescission, multiple lawsuits were filed challenging the termination. Several courts issued injunctive orders
directing the government to partially maintain the DACA program. Therefore, those who were already protected by the DACA were able to file for extension of Deferred Action and Employment Authorization.
The June 18, 2020 Supreme Court decision states that terminating the renewal program was done in violation of APA.
What does the SCOTUS Decision ruling mean ?
According to last week's Supreme Court's decision, the Executive Branch must follow a certain set of APA rules or procedures to terminate the DACA program. Therefore, Supreme Court found that the DHS did not follow those rules and procedures correctly and only ordered USCIS to continue to accepting and processing certain types of DACA requests.
Which type of DACA requests can continue to be processed by the USCIS?
- People Who Currently Have DACA can file a renewal DACA request.
- People Whose DACA Expired One Year Ago or Less may still file a renewal DACA request.
- People Whose DACA Expired More Than One Year Ago may file an initial DACA request.
- People Whose DACA Was Terminated at any point may file an initial DACA request
Can I file a new "initial" DACA Application (I have never held DACA)?
Although the Supreme Court's ruling is considered a great victory for DACA holders, it is also true that DHS still has authority over the DACA program and the fate of its recipients. In our opinion, DHS stopped accepting initial DACA applications on September 5, 2017 and the June 18, 2020 Supreme Court decision did not address this issue, but the issue of DHS violating the APA and terminating current
holders of DACA with proper APA process.
What is the USCIS current position?
On June 19, 2020, U.S. Citizenship and Immigration Services Deputy Director for Policy Joseph Edlow, issued the following statement; "the 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". Given this statement, our law firm believes that any person considering filing a new initial DACA application should be very cautious.
The Court’s opinion leaves open the possibility that DHS could issue a new corrected memorandum terminating DACA. This memo could come very quickly or could be put on hold until a future point in time, such as after the presidential election in November. It is uncertain.
What is GC Ungo's recommendation?
At the writing of this post, GC Ungo Immigration will not be preparing new initial filings absent USCIS Guidance. We understand that hundreds of potential Dreamers may be eligible and ready to apply, but we also have an ethical duty to keep our clients protected. We have weighted the risks, and without clear guidance, new initial applications are likely to be denied under the Trump Administration. The process has no appeal and chances or deportation remain high.
We will keep our readers updated.
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