Practice Alert: Impact of the Supreme Court Decision Blocking DACA Rescission
By: Reynold E. Finnegan, Dated July 21, 2020
On June 18, 2020, the U.S. Supreme Court ruled that DHS’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act. This practice alert explains the immediate impact of that decision and thoughts about the next steps as we look ahead to the 2020 election.
On September 5, 2017, the Trump Administration rescinded the DACA program in a memorandum issued by then-acting Secretary Elaine Duke. Following the rescission, multiple lawsuits were filed challenging the termination, and several courts issued injunctive orders directing the government to partially maintain the DACA program. For more information on these legal challenges and a thorough discussion of DACA application processing under the court orders on June 28, 2019, the Supreme Court consolidated and granted certiorari in several of these cases. It heard oral argument on November 12, 2019.
On June 18, 2020 the Supreme Court blocked the government’s attempt to terminate DACA and remanded the case for further consideration. The 5 to 4 majority opinion issued by Chief Justice John G. Roberts, Jr., ruled, as a threshold matter, that the Court had jurisdiction to review DHS’s final decision to rescind DACA under the APA. Turning to the merits, the majority ruled that DHS’s rescission violated the APA as an arbitrary and capricious final agency action because the agency failed to consider “important aspects of the problem before the agency.” Specifically, the Court concluded that DHS failed to consider whether to continue only the deferred action part of the DACA program and that “omission alone renders [the decision] arbitrary and capricious.” In addition, the Court found that DHS failed to address the considerable reliance interests created by the DACA program, such as the impact on Dreamers and their families, if the agency terminated DACA.
Importantly, Justice Roberts noted that the parties agreed that DHS may rescind DACA and emphasized that the court is not deciding whether DACA or its rescission are “sound policies.” Ultimately, the Court rested its decision on well-settled principles rooted in government accountability as codified in the APA: the agency failed to provide a reasoned explanation for its action. Accordingly, the Court remanded the cases for DHS to “consider the problem anew.”
On July 17, 2020, a Maryland district court judge entered an order in Casa de Maryland, et al., v. DHS, et.al. in response to the Supreme Court decision, vacating the DACA rescission and restoring the program to its pre-September 5, 2017 status.
Impact of the Supreme Court Decision on DACA Filings
Under the Supreme Court decision, USCIS must continue to process the following types of DACA requests (as outlined 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 Supreme Court’s decision, as well as the Maryland district court’s order, USCIS must also accept the following applications that were suspended under prior court orders, and should publish guidance immediately on its processing of these applications:
- 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.
Practitioners and their clients may want to consider several factors when deciding whether to submit a new, initial DACA application before USCIS guidance is issued, including: 1) the possibility that the administration may issue a new memorandum rescinding DACA before the applicant receives a decision; 2) that – in the absence of guidance – USCIS officers will reject new, initial applications or accept them and deny them; and 3) that USCIS is experiencing significant delays in processing as well as a budget shortfall that may further delay adjudications. Given uncertainty surrounding DHS plans, and also given the state of travel during the COVID-19 pandemic, AILA recommends practitioners carefully weigh whether to apply for advance parole.
If filing new, initial DACA applications or advance parole applications based on DACA, AILA members may want to include a copy of the Maryland district court’s order (available on F&D web-site) with the filing and reference the order in the cover letter.
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