News

Published 6.23.2020

On June 18, 2020, the U.S. Supreme Court ruled that the Trump administration’s decision to cancel DACA was arbitrary and capricious and therefore violated the Administrative Procedure Act.  Chief Justice Roberts issued the Court’s majority opinion.

What is DACA?

The Deferred Action for Childhood Arrivals (DACA), is a program that was implemented by President Barack Obama in June 2012, and that allows certain young people living in the U.S. without immigration status to apply for work authorization and be temporarily shielded from removal. The program applies to individuals who were brought to the U.S. as children, who are pursuing high school or higher education, and who have no significant criminal record, among other requirements.  DACA provides eligible applicants work authorization in two-year increments and is subject to renewal as long as the program remains in effect.  DACA is not permanent and does not provide U.S. citizenship or permanent residence (green card).  By itself, DACA also does not put an individual on a path to residence or citizenship.

Why was DACA in court?

In September 2017, the Trump administration announced that it would terminate DACA.  At that time, the Trump administration stopped accepting applications for new DACA benefits, and allowed some individuals who already had DACA to apply for renewal by October 5, 2017.  After litigation started, the district court ruled that the administration must continue to accept renewal applications, but that it could stop accepting applications for first-time applicants who had not yet obtained DACA before.  We previously discussed the termination of DACA in detail back in September 2017 and over the following months, as the issue continued to make its way through the courts.  Since then, the issue advanced to the Court of Appeal and, ultimately, to the U.S. Supreme Court.  After hearing oral argument in November 2019, the Supreme Court issued its decision toward the end of its 2020 session, on June 18, 2020.

What questions did the Supreme Court review?

Among the issues it considered, the Supreme Court analyzed the following questions:

1. Can a court even review the Trump administration’s decision, or is judicial review prohibited by law?
2. Was the Trump administration’s decision to cancel DACA arbitrary and capricious?

If the answer to the first question were No, the Court would have no authority to analyze the second question.  If the answer to the first question is Yes, the Court would then go on to rule on the merits of the other question.

What did the Supreme Court rule?

1. Can the courts review the Trump administration’s decision to cancel DACA? The Supreme Court answered Yes, they can.

   The government had relied heavily on the theory that courts have no authority to review agency non-enforcement policies.  However, the Supreme Court found that DACA was much more than a non-enforcement policy.  In implementing DACA, the Obama administration had not just decided to defer removal proceedings for eligible individuals.  It had also decided to create an entire program providing affirmative immigration relief.  Therefore, because DACA is not merely a non-enforcement provision, the decision to cancel it is subject to judicial review.

   The government also relied on language from the Immigration and Nationality Act that specifically precludes judicial review in the case of proceedings brought to remove foreign nationals.  The Supreme Court took issue with this argument, because neither party was challenging a removal proceeding, and the preclusion of that statute is inapplicable to other issues such as the cancelation of the DACA program. Finding that the court indeed had authority to review the government’s decision, the Justices moved on to the remaining questions in the case.

2. Was the Trump administration’s decision to cancel DACA arbitrary and capricious? The Supreme Court found that yes, it was arbitrary and capricious.

In reaching its decision, the Court relied on the reasons that the Department of Homeland Security (DHS) articulated for terminating DACA at the time the decision was made.  Namely, then-DHS Secretary Elaine Duke made a one-sentence statement that she was terminating DACA because the program was allegedly was illegal.  However, no court had ruled that DACA was illegal, and then-Secretary Duke did not exercise her discretion to make any independent findings into the legality or alleged illegality of the program.  While the Court acknowledged that the administration does, in fact, have the authority to terminate DACA, it cannot do so by means of an arbitrary and capricious statement.  Therefore, the government’s justification (or lack thereof) for ending the program, violated the law.

Does the Supreme Court’s decision mean that DACA is legal and is here to stay?

No, the Supreme Court did not rule on the legality of the DACA program.  The Court only ruled on the legality of the manner in which the Trump administration eliminated the program, and found that to be arbitrary, capricious, and in violation of U.S. law.  The Trump administration can go back to the drawing board and try to eliminate the program again, this time complying with the procedural requirements of the Administrative Procedure Act.  And the Trump administration has already indicated that it would do just that.

Now that the Supreme Court ruled against the Trump administration, does that mean DACA will be restored to its original form?

Theoretically, yes, but in practice, unlikely.  By ruling that the decision and manner used to dismantle DACA were arbitrary and capricious (and thereby illegal), the Supreme Court virtually reinstated DACA in the same shape and form it existed at the time of the illegal termination on September 5, 2017.  That means that DACA applications for first-time applicants who never had DACA before, who became eligible since September 2017 but could not apply because of the illegal decision to terminate the program, could once again be accepted.  That also means that advance parole, a temporary travel authorization that was available to DACA recipients before, but was terminated as part of the illegal September 2017 DACA roll-back, could be available again.

However, the U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS), the agency administering the DACA program, has not yet taken steps to resume first-time applications or DACA-related advance parole requests. What is more, the agency’s Acting Secretary, Chad Wolf, stated in an interview that the agency would continue the program as they had “over the past two years, continuing to renew those” applications, which makes it clear that USCIS has no intention in restoring the rest of the DACA features that were in place prior to two years ago, or before September 2017.  Indeed, as of the date of this article (almost a week after the Supreme Court’s decision), the USCIS webpage providing instructions to DACA applicants continues to state that “USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA.”  Acting Secretary Wolf also indicated in the same interview that President Trump has ordered his administration to make a new attempt to terminate the program.  If USCIS indeed refuses to accept first-time DACA applications or DACA-related advance parole while the program is still in place, it is expected that additional litigation will follow in order to compel the Trump administration to comply with the Supreme Court’s decision.  You can read the full Supreme Court opinion here.

As always, we will continue to monitor the developments surrounding DACA and other immigration changes and we will provide updates as applicable. In the meantime, if you have any questions regarding DACA or other U.S. immigration policies, please contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.