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Rally by the Supreme Court as the DACA cases are heard inside, back in November 2019. Photo-Victoria Pickering-Flickr (CC BY-NC-ND 2.0)
Rally by the Supreme Court as the DACA cases are heard inside, back in November 2019. Photo-Victoria Pickering-Flickr (CC BY-NC-ND 2.0)

The Supreme Court DACA Decision:
What Does It Mean for DACA Holders and Potentially for DAPA? 

Jun 18, 2020
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner

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Supreme Court June 18, 2020On June 18th, the Supreme Court ruled in favor of the DACA (Deferred Action for Childhood Arrivals) recipients and against the Trump Administration.  In short, it means immigrants with DACA can continue to renew their status and their work permits, and maintain their reprieve from deportation.  

And the decision might have even larger consequences for DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), the Obama Administration program that would have given 5 million immigrants with children born here a similar status, but was shut down by a lower court in 2015.  

The Decision

The Supreme Court’s decision was 5-4, finding the Trump Administration’s termination of DACA “arbitrary and capricious”.  While this is not a final decision, it affirms the lower courts’ injunction requiring the administration to keep the program open for renewals. To read the decision: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf 

“We do not decide whether DACA or its rescission are sound policies,” the chief justice wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” reads the opinion.  

Kids rally for DACA. Pax Ahimsa Gethen / CC BY-SA (https://creativecommons.org/licenses/by-sa/4.0)Who can apply for DACA now?

For now, persons who already have DACA can continue filing renewals.  It is  recommended that applicants do so at least 150 days before their DACA expires.

Unfortunately, new applicants are still not eligible.  That means, young kids turning 15 who would have been eligible for this legal status, are now still subject to deportation.    

The legal battle over DACA continues

On September 5, 2017, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals.  While that case was pending, two other federal judges issued similar injunctions against Trump.

Protesters hold various signs and banners at a DACA rally in San Francisco. Pax Ahimsa Gethen / CC BY-SA (https://creativecommons.org/licenses/by-sa/4.0)

Earlier in 2018, the Administration asked the U.S. Supreme Court to expedite its review of these rulings but the Supreme Court refused.  In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals, which ruled against Trump.  

Two other circuit courts – in New York and the District of Columbia—have also ruled against the Trump Administration, issuing similar orders requiring the program to remain open.  

Technically what the Supreme Court has done is send back the case to the lower courts for further proceedings on the legality of DACA.  The Trump Administration does have a legal right to try again to justify the termination of DACA.  

In reality, the program’s fate will probably rest on the election and future legislation (See below).  

What about DACA legislation?

Last year, the House of Representatives passed the Dream and Promise Act, H.R. 6, by a vote of 237-187, pretty much along party lines. This bill, which would have given DACA recipients a path to residence, was never considered in the Senate.  Senate Majority Leader Mitch McConnell refused to let it come to a vote.  

Perhaps after the election, we will see a legislative solution for DACA recipients.

American children ask government not to deport their undocumented parents-Niños estadounidenses, piden al gobierno que no deporten a sus padres indocumentados. Foto Cortesía/Archivo

What about DAPA? 

Interestingly, the Supreme Court’s decision could have implications for the termination of the DAPA program by a lower court in 2015.  DAPA would have allowed approximately 5 million parents of children born here to get status, a work permit and a reprieve from deportation.  While Trump is unlikely to revive DAPA, Joe Biden might now do so if he wins, and this Court decision might mean that it would survive court challenge – unlike the last time.

Christopher Kerosky 

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