In a narrow 5-4 ruling, the Supreme Court blocked, perhaps only temporarily, President Trump’s attempt to terminate Deferred Action for Childhood Arrivals (DACA). The majority held that the Administration failed to provide adequate reasoning to justify ending the DACA program, in violation of the Administrative Procedure Act. The Court reasoned that in attempting to rescind DACA, the Department of Homeland Security failed to consider “the conspicuous issues of whether to retain forbearance” as well as the hardship to DACA recipients. The court remanded the matter to DHS so that it may reconsider. Even though the Administration has an opportunity to reconsider the issue, this is huge victory for DACA recipients.
The DACA program was created by the Obama Administration in 2012, allowing certain children to be temporarily shielded from deportation and to obtain work authorization if they (1) entered United States before their 16th birthday; (2) continuously resided in the United States since June 15, 2007; and (3) were in school, graduated, or obtained a completion of high school, a GED certificate, or were veterans of the Armed Forces who were honorably discharged. Since the program’s inception, there have been approximately 700,000 recipients, contributing approximately $42 billion to the United States’ annual gross domestic product (GDP), $1.7 billion in state and local taxes, and $5.7 billion in federal taxes. Efforts to eliminate the program could have thwarted the United States’ pandemic response, as 29,000 DACA recipients work in healthcare as physicians, nurses, health aids, and technicians.
The Supreme Court’s decision unfortunately does not provide permanent protection to DACA recipients. The court noted that the parties agreed that DHS has the legal authority to end the program. USCIS disappointingly issued a statement after the decision indicating the majority’s opinion had no basis in law and merely delays President Trump’s ability to end the program. President Trump said he will attempt to end the DACA program by following the rules set out by the Justices. This, however, seems unlikely to happen before the November election.
As DACA does not provide a pathway to permanent residence, DACA recipients should consult with an experienced immigration attorney to evaluate and screen for other forms of immigration relief. On a positive note, in response to the Supreme Court’s decision, Democratic presidential nominee Joe Biden promised to send a bill to Congress on “Day One” of his presidency to make DACA protections permanent.