The
Supreme Court DACA Decision: What Does It Mean for DACA holders and potentially
for DAPA?
By
Christopher Kerosky
On July
18th, the Supreme Court ruled in favor of the DACA 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, 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.
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.
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.
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.
