DACA Continues: What you need to know about the future of DACA following the SCOTUS decision.

The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”

Chief Justice Roberts, June 18, 2020 in Department of Homeland Security et al v. Regents of the University of California, et al.

Such joyous great news today, June 18, 2020, when we need it most! The US Supreme Court ruled today that the Trump Administration unlawfully terminated the DACA program.  Thanks are due to DACA youth, activists, and allies for their years of hard work mobilizing.

What did the US Supreme Court decide today? 

In a 5-4 decision, the Court blocked the Trump Administration’s ending of Deferred Action for Childhood Arrivals (DACA) program. Chief Justice John G. Roberts Jr. wrote the majority opinion joined by the court’s four liberal justices (Kagan, Ginsburg, Sotomayor and Breyer).

What is Deferred Action? 

Deferred Action is to delay carrying out a deportation order or putting someone in removal proceedings. It is discretionary, meaning the immigration officer balances the good facts with the bad facts and is decided “case by case.” It’s a tool that has been in the law for decades.  Deferred action is NOT a green card or visa, or a long-term immigration solution. DACA was created because of the hard work of undocumented immigrant youth and communities that organized and fought to stop their own deportations. Through a variety of tactics, like sit-in’s, rallies, etc. they pressured and urged former President Barack Obama to make DACA a reality. The Obama Administration enacted DACA in 2012 to cover 800,000 young people and it included much more than not deporting people. People had to apply and could receive employment authorization and other benefits as a result.

What does the decision mean?

The court decided two issues. One, that courts have authority to review executive decisions to end DACA and two, that the Trump Administration unlawfully ended the DACA program. The decision means that DACA recipients across the country will continue to have temporary protection from deportation. The court sent the case back to the lower courts for the Trump administration to come up with better reasons to terminate the program that meet the requirements of the “Administrative Procedures Act” or (APA). This means the case could be reheard in the lower courts and land back in the appellate courts, or even the US Supreme Court again, but it’s not likely to happen before the election on November 3. That’s why it’s so important for US Citizens to vote on November 3. 

Why did the court make this decision?

The Court found the reasons the Trump Administration ended DACA were “arbitrary and capricious,” which means he did not adequately justify his reasons under the APA. The APA governs agency decisions. When there is a major rule change, an agency must have legitimate reasons for doing so and evidence to back it up.  Importantly, the Court said that due to the unusual nature of DACA allowing people to work and gain other benefits as an “adjudication” of status, DACA recipients relied on their status. Therefore, the Trump Administration should have considered that reliance.  The decision also shows just how important the principle of separation of powers is and the need for government agency accountability – see the quote above.

What does this mean for DACA recipients now?

DACA recipients can breathe a sigh of relief, but their organizing efforts are not over – there is more work to do. DACA was never intended to be a long-term status solution. DACA exists because Congress failed to do its job. Only Congress can create a path to legal permanent residence and naturalization for DACA recipients.

DACA Recipients, their families, friends and employers need to contact Congress now to argue for a “clean” DACA bill, which means it should not be tied to other immigration or unrelated topics. The reason Senate Majority Leader Mitch McConnell did not bring a clean bill to a vote is because he only wanted to vote on bills the President was likely to sign. Trump was not likely to sign a bill that did not also restrict other legal immigration.  Instead, he has tried to weaponize DACA as a bargaining chip for restrictive immigration. We don’t want that. Therefore, it’s important to tell Congress not to hold DACA recipients as hostages for restrictive legal immigration! Their legal limbo must end! Poll after poll shows a majority of Americans from across the political spectrum agree! 

Will DHS accept new DACA applications and/or advance parole for travel? 

Since DACA still stands, DHS should create a process to accept first time new and renewal applications plus requests for “advance parole” to enable travel. They should communicate this quickly. Follow this link to see what DHS decides to do.

What else should DACA recipients do right NOW?

Despite the great outcome of the case, DACA is still a temporary program until there are further court proceedings or while “waiting” for Congress to Act (which could be years). Don’t procrastinate! Take action now by making sure to always have valid DACA status – get those renewals in! And, get legal advice about other possible immigration options. Continue to make back up plans for yourselves and safety plans for family members. See OneAmerica’s DACA toolkit for legal and family resources.

The City of Seattle is sponsoring a new FREE DACA consultation clinic in partnership with the American Immigration Lawyers Association (AILAWA) and King County Bar Association starting July 11.

Northwest Immigrant Rights Project (NWIRP) holds monthly DACA renewal clinics. Sign up here.

DACA activists and their allies should be so proud of their organizing accomplishments. This is a great victory for now. We must continue to fight for a roadmap to citizenship for ALL undocumented folks in our community.

In solidarity,

Bonnie Stern Wasser Signature

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