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Immigration 101: Why is DACA Going Before the Supreme Court?

 

Next Tuesday, the Supreme Court will review three cases regarding the Deferred Action for Childhood Arrivals program, (DACA). The Court will be deciding whether Donald Trump’s 2017 decision to terminate DACA is something that courts can review at all, and furthermore, whether this termination is ultimately legal. The Supreme Court decision can come as early as January 2020 and no later than June 2020. 

In June 2012, President Barack Obama announced the start of DACA, which allows undocumented young adults who came to the United States as children to apply for protection from deportation. Obama’s executive action did not create a pathway to citizenship, but merely a shield from deportation where DACA status must be renewed every two years. Along with deferral of removal from the U.S., those with DACA were also granted work permits. 

As of June 2019, there were a total of 660,880 DACA recipients. On September 5, 2017, the Trump administration announced the termination of DACA. Due to pending litigation, today the United States Citizenship and Immigration Services (USCIS) continues to accept DACA renewal applications; however, no new DACA applications have been accepted. 

As a result of this decision to terminate DACA, multiple lawsuits were filed by DACA recipients, advocates, and academic institutions. There were various cases filed against the termination of DACA, including Regents of the University of California, et al. v. Dept. of Homeland Security (DHS), Batalla Vidal v. Nielsen, and NAACP v. Trump. Federal district courts in each of these cases have issued preliminary injunctions to temporarily stop the Trump administration from ending DACA while the merits of cases are considered. The Trump administration appealed these cases to federal courts of appeals. Instead of waiting for these circuit courts of appeals to review the lower court decisions, the Trump administration also took the unusual step of seeking review by the Supreme Court — request for certiorari — before the circuit courts finished their review, a process normally reserved for unique circumstances.  

Although the Supreme Court denied the Trump administration’s first certiorari request in the University of California case, it ultimately granted certiorari in the three aforementioned cases due to other certiorari requests.  Supreme Court has agreed oral arguments are scheduled for November 12, 2019. 

According to the National Immigration Law Center, these are several potential outcomes that the Supreme Court’s review of these DACA cases: 

  • “The Supreme Court concludes that courts may not review the Trump administration’s decision to terminate DACA.” The Trump administration could then proceed to terminate DACA, and decide what to do with DACA applications. However, a future administration could reinstate DACA without challenge from any courts based on this preceding case. 
  • “The court concludes that it may review the administration’s decision to terminate DACA and rules that the termination is unlawful. This would be a win for DACA recipients.” DACA would revert back to its pre-September 2017 state. However, there is no certainty as to how the Trump administration would react to this decision. There could be other attempts to end DACA based on different legal reasoning. 
  • “The Court concludes that it may review the decision, and it decides that the Trump administration’s termination of DACA is lawful.” Thus, the Trump administration will determine how DACA is dealt with, particularly with renewal applications, work permit expirations, etc. 

 

For DACA recipients, this Supreme Court case could very well alter their day-to-day lives. This decision could either reassure their temporary relief or trigger even greater fears of deportation. Right now, various DACA and TPS recipients are marching from the Statue of Liberty in New York to the Supreme Court in Washington, D.C. as part of the Home is Here campaign in order to draw national attention to the Supreme Court review of DACA. As their website states, “We want to show the Supreme Court justices the faces of those who will be impacted by these court cases. We demand that the Supreme Court rule on the right side of history by protecting DACA, and we call on Congress to pass a permanent legislative solution for TPS recipients in this country.”