On Thursday, June 18 the Supreme Court ruled in DHS v. Regents of the University of California against ending DACA (the Deferred Action for Childhood Arrivals program). About 700,000 people have status under DACA, a program that was brought about in 2012 under the former Obama administration. The program allows some undocumented immigrants, namely those who arrived in the US before the age of 16 and were physically present in the United States on June 15, 2012, to gain work authorization and federal benefits such as Social Security and Medicare.
The Department of Homeland Security (DHS) decided to rescind DACA through a Memorandum issued originally by former Secretary Duke and then later expanded upon by Secretary Nielsen. In the Court's ruling, it is reiterated that the dispute brought forth by DHS v. Regents of the University of California “is not whether DHS may rescind DACA… the dispute is instead primarily about the procedure the agency followed in doing so.” The majority ruled against DHS under the argument that the DACA program is 1) subject to review under the Administrative Procedure Act (APA) and 2) when reviewing the DHS's rescinding of DACA under the APA, it was found that DHS's decision was both “arbitrary and capricious.”
Several Justices dissented in part from the Court's ruling, including Justices Sotomayor, Thomas, Kavanaugh, Gorsuch, and Alito. Whereas the Court's ruling dismissed the “challenge to the rescission under the Equal Protection Clause,” Justice Sotomayor dissented with Part IV of the Court's ruling and voiced the opinion that the Court's ruling brushed over key evidence pertaining to the President's remarks about Mexican immigrants and context surrounding the Duke Memorandum. On the other hand, Justice Thomas argues that DHS's initial declaration of DACA was unlawful and so the undoing of DACA is lawful. Justice Kavanaugh took a slightly different stance in his partial dissent of the Court's ruling as he argues the Court should have considered the Nielsen Memorandum, which he states did show that DHS “considered the policy issues that the Court today says the Department did not consider.”
Though the 5-4 ruling does not provide permanent protection to DACA recipients, it means that the renewal of DACA protections will be able to continue and people who have become eligible for DACA since the announcement of the rescission of the program in 2017 should theoretically be able to apply for the program. Additionally, H.R.6, the American Dream and Promise Act of 2019, was passed in the House of Representatives on June 4, 2019, but has not yet been decided on in the Senate. If passed, this act would provide a more permanent solution for recipients of DACA, including a potential path to U.S. citizenship through first granting DACA recipients Conditional Permanent Residence (CPR) status, followed by Lawful Permanent Residence (LPR) status, and finally the opportunity to apply for citizenship after maintaining LPR status for 5 years.
This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call me at 214-494-8033, complete my contact form
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