Saturday, November 9, 2019

This Week’s Supreme Court Argument on DACA: What’s at Stake?



This Week’s Supreme Court Argument on DACA: What’s at Stake?
By Christopher Kerosky, Esq.
On Tuesday, Supreme Court will hear oral arguments on the legality of the Trump Administration’s termination of the DACA program. 
The status of the legal battle over DACA.

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.

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. 

In November, 2018, that Court ruled in favor of the DACA recipients and against the Trump Administration.  The decision of the three-judge panel was unanimous.  While this is not a final decision, it affirms the lower court’s injunction requiring the administration to keep the program open for renewals. The Ninth Circuit Court of Appeals in San Francisco told the Trump Administration it acted without legal basis when it sought to closed down DACA.  To read the decision: https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000927

"We conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA -- at least as justified on this record -- is arbitrary, capricious, or otherwise not in accordance with law," reads the opinion. 

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.  All three of these decisions are in front of the Supreme Court. 

The Supreme Court will hear oral argument on this on Tuesday and likely issue a ruling in June of next year.   They will rule on whether Trump’s elimination of DACA was in fact “arbitrary and capricious” and therefore violated the Administrative Procedure Act.  The highly-divided Supreme Court will probably render a 5-4 decision with Chief Justice Roberts being the likely deciding vote.  A lot will be riding on what that one jurist thinks.

Who can apply for DACA now?

For now, persons who already have DACA can continue filing renewals.  I recommend 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.   

Also, the Trump Administration denies DACA holders the permission to travel – a privilege that was previously available under Obama.  This often results in tragic consequences.  I know a 19-year-old college student who spent their entire life here, but unknowingly lost his status by taking a weekend trip to Tijuana.  He now is stuck in his home country without a way to return for the foreseeable future.

What about DACA legislation?

In June, 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.

Future of 800,000 DACA recipients on the line.

There are about 800,000 people in the U.S. with DACA status.  All of these DACA recipients will retain their legal status only if the Supreme Court rules against Trump.  If the Court rules with Trump, these DACA recipients will be subject to deportation upon expiration of their current 2-year-permit.  If the Court rules against Trump, their DACA status will continue indefinitely

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