Amber Blasingame & Petula McShiras
In a 5-4 majority decision, the US Supreme Court on June 18, 2020, decided that the administration must continue Deferred Action for Childhood Arrival (DACA) absent a well-reasoned analysis to rescind the program. The Court found the September 2017 decision to rescind the program, executed by then Acting Secretary of US Department of Homeland Security on the advice of the Attorney General, to be “arbitrary and capricious” and in violation of the Administrative Procedure Act (APA).
The DACA Program lives another day. However, it remains to be seen how this decision will affect the application of the current program procedures. US Citizenship and Immigration Services has not yet posted policies and procedures congruent with the Court’s decision today. For now, USCIS will continue to accept renewal applications for those “Dreamers” who were previously granted DACA. It is uncertain as to whether USCIS will begin accepting new applications for “Dreamers” who did not previously apply for DACA or if DACA recipients will again be permitted to apply for “Advance Parole” to travel outside of the United States for humanitarian and emergent reasons. Ideally, both initial applications and Advance Parole will resume and DACA will return to the state it was prior to the September 2017 memo.
Also unknown is the future of the “Dreamers” and DACA recipients. DACA was not intended to be a permanent solution for Dreamers who came to the United States as children, either undocumented or as overstays. President Obama signed the Executive Order creating DACA as incentive for Congress to finally enact laws that would provide a stable status and pathway to citizenship for Dreamers who have adopted the United States as their home. “Deferred Action” is not a “status.” It does not provide a pathway even to permanent residence in the United States, much less citizenship. Deferred Action is merely an agreement between the individual and the government that as long as the program remains available and the individual is eligible for the program, the government will not remove or deport the individual from the United States.
Until Congress passes legislation enacting DACA or some form of the program into law, the fate of the Dreamers remains in limbo. However, for now, absent a well-reasoned analysis to rescind the program, DACA remains an available option for Dreamers to continue living and working in their adopted country. If you would like to see a more permanent solution, we urge you to contact your Congressmen and if you are a U.S. citizen, to vote!
For the full Supreme Court of the United States's decision, visit https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf.