Published June 30, 2020
By: Richard Hanus, Esq.
Deferred Action for Childhood Arrivals – better known as DACA – was an Executive Order issued by President Obama in 2012 after our Congress was unable to agree on an appropriate answer to our nation’s “12 million undocumented” state of affairs. Once in place, DACA allowed approximately 700,000 young adults who were brought to the U.S. illegally as children to gain legal status and employment authorization for 2 year increments and otherwise be protected from deportation. 8 years later, tens of thousands of DACA recipients are accomplished professionals, teachers, artists, business leaders and students, and hundreds of thousands more are on their way to a successful future. DACA recipients own homes, pay taxes and have started families. When President Trump assumed office he made a special point of putting DACA on the chopping block, and followed through to rescind the program through his own executive action. But after widespread legal challenges and a recent U.S. Supreme Court ruling, DACA is still alive, although perhaps only for a few more moments.
When a new President takes office, it is assumed a previous administration’s Executive Orders are fair game for reversal. DACA of course was no exception. With immigration as one of Trump’s favorite political footballs, his actions to terminate DACA played more than well with his base – a constituency that enjoys his tough talk on immigration including a promise to round up and deport all of our undocumented population. But in a surprise move last week, the U.S. Supreme Court, with Justice Roberts writing for the majority, issued an order putting a halt to DACA’s termination calling the action “arbitrary and capricious” and stating, “the dispute before the court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” In essence, its not that DACA could not be terminated, it’s just that the Administration went about it the wrong way and without proper justification. According to the Supreme Court, the Administration, among other failings, neglected to consider the extent to which DACA approved applicants have come to rely on the program for their sustenance.
The Trump Administration is back to the drawing board to restart the DACA termination plan, and this time by way of a “correct” procedure, and taking into account the shortcomings noted by the Supreme Court. Based on the Supreme Court’s reasoning, the rescission of DACA is pretty much inevitable if that remains the will of our President or our Congress fails to act in formulating a legislative fix. Given the slim odds our Congress has the capacity to agree on an issue as sensational and political as DACA, the plight of our DACA population is going to be up to the President who is in office as of the next election.
In the meantime, with DACA revived, the U.S. Department of Homeland Security’s Citizenship and Immigration Services should continue to accept and process applications both to extend current DACA cases as well of those of eligible first time applicants.
PUBLISHED June 30, 2020– “IMMIGRATION LAW FORUM” Copyright © 2020, By Law Offices of Richard Hanus, Chicago, Illinois