On June 18, 2020, in a majority opinion (5-4) written by Chief Justice Roberts, the United States Supreme Court decided that the current administration’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedure Act, and remanded to the Department of Homeland Security to provide a fuller explanation which takes into account the forbearance policy which stands at the core of the DACA program and the reliance interests of the program’s beneficiaries.

What is DACA?

DACA was established by the Obama administration in 2012.  DACA offers forbearance of removal to some 700,000 beneficiaries who “were brought to this country as children.  To establish DACA eligibility the applicant must show that he or she: (1) was under the age of 31 in 2012 when the program was announced; (2) resided continuously in the United States since 2007; (3) was enrolled in school, completed high-school, or were honorably discharged veterans; (4) has not been convicted of any serious crimes; (5) does not pose a threat to the national security or public safety.  (See attached the June 15, 2012 Memorandum establishing the DACA program).  Once granted, DACA is valid for two years, subject to renewal.

DACA rests on the policy grounds that qualifying individuals who were brought to the United States as children lacked the intent to break immigration laws, were productive members of the society, and having spent most of their lives in the United States, they “knew only this country as home.”

The 2012 Memorandum further provides that DACA status was valid for two years, subject to renewal.  In addition to relief from removal, qualifying participants are also eligible for collateral benefits such as work authorization and eligibility for Social Security and Medicare benefits.

Persons deemed eligible for deferred action are considered to be “lawfully present” in the United States.  Lawful presence renders qualified non-citizens eligible for certain benefits such as employment authorization as applicants who establish “economic necessity” under immigration regulations 8 CFR § 274a.12(c)(14)(2012), and for Social Security, and Medicare under non-immigration regulations 8 CFR § 1.3(a)(4)(vi); 42 CFR §417.422(h)(2012) respectively.

What does “Deferred Action” mean?

As the title of the program aptly suggests, DACA is a Deferred Action program.  Deferred Action is a temporary form of relief from removal that has long preceded the DACA program.  It applies to certain non-citizens who are deemed low priority for removal enforcement.  Decisions to defer action “take different forms, depending on the status of a particular matter, but include decisions such as not issuing an [Notice to Appear] . . . detaining an alien placed in [removal] proceedings and approving deferred action.”  Meissner Memo, HQOPP 50/4 (Nov. 17, 2000).  Victims of crime who establish prima facie eligibility for U-status are also granted deferred action.  Both types of applications, DACA and U status, are filed directly with the United States Citizenship and Immigration Service (USCIS), Department of Homeland Security’s branch that handles affirmative applications for immigration benefits.  Alternatively, requests for reprieve or removal forbearance can also be made in removal proceedings.  Such requests are handled by the Immigration and Customs Enforcement, DHS’ branch tasked with enforcing immigration laws.  Whether to withhold a person’s removal from the United States or to approve a DACA application rests fully within the discretion of the DHS.  Deferred action is “a discretionary decision not to assert the full scope of the INS enforcement authority as permitted under the law.”  To qualify for deferred action, one must make a convincing case for hardship if removed from the United States and show strong equities in favor of staying in the United States.

DACA’s Rescission

In September 2017, five years after DACA’s implementation, the Department of Homeland Security (DHS) under the management of President Trump’s administration, rescinded DACA on the grounds that the program lacked statutory or constitutional authority:  “the INA does not permit reclassification of millions of illegal persons as lawfully present and make them eligible for federal and state benefits, including work authorization.”

However, on June 18, 2020, the Supreme Court remanded to the DHS to reconsider its decision to rescind DACA.  The government’s explanation that DACA should be rescinded because the program lacked statutory or Constitutional basis was insufficient without also considering the removal forbearance (deferred action), a policy consideration that lies at the heart of the DACA program, and the beneficiaries’ legitimate reliance on the DACA program; these two considerations are fully within the scope of DHS’ work and DHS was expected to weigh in on them in deciding whether to rescind or keep DACA in place.  As such, DHS’ decision was unreasonable and deemed arbitrary and capricious in violation of the Administration Procedure Act (the “APA“).

The legitimate reliance or hardship argument offers insight into the future of the Temporary Protected Status (TPS) program.  In changing course by rescinding a longstanding policy, an agency is required to consider whether the policy has been legitimately relied upon by its beneficiaries.  Failing to take into account reliance consequences such as hardship to the beneficiaries could “endanger serious reliance interests,” especially when the program involves a significant section of the population.  Regarding DACA the Supreme Court noted that its rescission would affect not just the 700,000 beneficiaries themselves, who have grown up here, are productive members of the society and only know the United States as home, but would also “radiate out” to their 200,000 US Children who would lose their parents to deportation.  Moreover, rescinding DACA would impact the US economy as studies have shown that without DACA the US economy stands to lose $215 billion in economic activity, $60 billion in federal tax revenue for the next 10 years, and $1.25 billion in lost annual tax revenues at state and local government levels.”

The Future of DACA*

DACA’s future is uncertain.  The day immediately following the SC’s decision, USCIS commented that it had “no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”  (For full statement click here).  Less than a month later, on July 10, 2020, President Trump announced that he was planning to issue a “big” executive order on immigration which might include a road to citizenship for DACA beneficiaries.  These statements are contradictory and add further uncertainty to the future of DACA.  We will promptly post any further DACA updates to this website.

* Update as of July 18, 2020.  On July 17, 2020, the U.S. District Court for the District of Maryland voided DHS’ decision to rescind DACA and ordered USCIS to begin processing new DACA applications.  This is great news for DACA beneficiaries as this decision restores DACA to its pre-September 5, 2017 status when both first time and renewal applications were accepted as originally contemplated by the 2012 Memorandum establishing DACA.  It would be for the first time in approximately three years that potential DACA beneficiaries will be able to file new applications.  For more DACA news, stayed tuned!