SUPREME COURT DECISION ON DACA: WHAT DOES IT MEAN FOR DACA AND UNDOCUMENTED IMMIGRANTS?
On June 18, 2020, the U.S. Supreme Court decided 5-4 that the Trump Administration could not end the Deferred Action for Childhood Arrivals (DACA) program because the Department of Homeland Security (DHS) acted in a manner that was arbitrary and capricious under the Administrative Procedures Act. A more detailed discussion about the Supreme Court decision is provided in the video below.
While DACA recipients and immigrant advocates were thrilled to know that DACA was protected at least for the immediate future, immigration lawyers throughout the country were trying to understand what is the practical impact of this decision and how to advise current DACA recipients and other undocumented immigrants who may have been able to apply for DACA but missed the opportunity the first time it was available.
While each immigrants case is unique and its best for each immigrant to consult with an attorney about the specific application of law to their individual case, below is the current understanding of the Supreme Court’s decision the American Immigration Lawyers Association (AILA) has shared with myself and other immigration law practitioners:
Under the SCOTUS decision, USCIS must continue to process the following types of DACA requests (as outlined in USCIS guidance in place prior to the Supreme Court ruling):
People Who Currently Have DACA: Current DACA recipients can file a renewal DACA request. People Whose DACA Expired One Year Ago or Less: Recipients whose previous DACA expired one year ago or less may still file a renewal DACA request. People Whose DACA Expired More Than One Year Ago: Recipients whose previous DACA expired more than one year ago cannot file a renewal DACA request but may file an initial DACA request. People Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal but may file an initial DACA request. In order to comply with the Court’s order, USCIS will have to publish guidance on processing the following applications that were suspended under prior court orders:
People Who Have Not Previously Been Granted DACA: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. As a result, USCIS should immediately publish guidance on processing new, initial DACA applications. Advance Parole Requests: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. Because advance parole based on DACA was a part of the 2012 DACA program, USCIS should immediately publish guidance on processing advance parole applications filed by DACA recipients. How DACA Recipients & Undocumented Immigrants Can Protect Themselves in the Future
The Supreme Court’s decision is a historic victory for DACA recipients and gives hope to undocumented immigrants but DHS still has the legal authority to rescind the DACA program and could implement a new memorandum rescinding the program. It is advised that all current DACA recipients and hopeful DACA recipients seek legal counsel about the specifics of their immigration status with an immigration attorney in light of this current Supreme Court decision. Our law firm has assisted DACA recipients and other undocumented immigrants in adjusting their status to Lawful Permanent Resident (LPR aka ‘green card’ holder) and are available to discuss the specifics of your immigration case.