DACA – Updates August 2019

“Dreamers” in the US under the DACA program are still very much in limbo as to what their future holds. Since President Trump decided to trash the Deferred Action for Childhood Arrivals (DACA) in 2017, an estimated 700,000 participants do not have a clear path to citizenship nor the promise of protection from deportation. President Obama started the program in 2012 to help protect young immigrants from potential deportation. As soon as Trump announced the plan to scrap the program, litigation started in several federal court districts.

Courts stayed much of what Trump planned to do but unfortunately, that is not the end of the story. In June of 2019, the President filed to have the Supreme Court review the legality of the lower court decisions regarding blocking the termination of the program. The Supreme Court agreed to hear the case after many months of consideration. Likely, the court has sat on the problem hoping that the legislative branches would come together and find common ground and create a new program.

The Justice Department requested that the case be expedited. They did deny the DOJ’s request to “fast track” the case. The single one-line decision simply stated “The motion to expedite consideration of the petition for a writ of certiorari is denied.”  

Noel Francisco, US Solicitor General argued that it was “critical” that a decision was made before summer recess began but the justices did not agree with his sense of urgency and rebuked the request. This was not the first time the Solicitor General asked the court to weigh in on the matter, he asked in November of 2018 and again in January of 2019. Each time his request was denied. The case will likely be heard sometime during the Fall 2019 session, some are speculating in October and a decision likely will be handed down sometime before June 2020.

What Will the Court Decide?

The Supreme Court will NOT be deciding the legality of DACA but instead will be looking at the way the Trump administration planned to dissolve the program. When Jeff Sessions (former Attorney General) announced that the program was being dissolved he cited that it was a program that was illegal in the first place. His announcement went on to state that President Obama created the program “without proper statutory authority”. Elaine Duke the acting Homeland Security Secretary, rescinded the program shortly after the announcement.

Several plaintiffs filed cases because the plan violated the Administrative Procedure Act and the administration’s lack of justification for ending the program. The Administrative Procedure Act is the federal laws governing how agencies set rules. Several federal judges agreed that Trump’s plans to end DACA violated the Administrative Procedure Act.

The stay has been upheld by lower courts including three federal judges and the 9th Court of Appeals who released the following as part of their decision:

“To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” wrote Appeals Court Judge Kim McLane Wardlaw. “We hold only that here, where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”

In other words, the Supreme Court is not making a decision about the program itself as far as components of the program but instead whether Trump can disband the program as planned or if he needs to follow the guidance of the Administrative Procedure Act and take the proper steps to try to disband the program which includes legal justification.

The Upside of the Current Situation

If the Supreme Court does side with the lower courts, and there is a strong possibility that they will, the clock will stop at least temporarily and everyone that these effects can take a deep breath. Another piece of good news is that perhaps, the Justice’s are taking their time with this matter so that Congress can come together and come up with a viable plan to replace the DACA program that young immigrants can transition to.

While there is not a lot of hope that Congress will figure this out, there is the pressure of the presidential election looming in 2020 which may get members motivated to find a solution.

The Downside of DACA 2019 Supreme Court Matter

The justices can decide not to uphold the lower court rulings. This would mean that USCIS would not be accepting DACA applications. It would mean that DACA would likely be ended. It is not the expected outcome but it is always possible and you should prepare ahead of time for it by securing the help of a trusted attorney.

If you have a trusted immigration attorney on your side you may be able to weather the DACA storm with more confidence. An attorney that understands the immigration law inside and out can help you to figure out the best route to take.

An attorney that specializes in immigration has the insiders track to the latest news and regulations. They will handle all of your filings and make sure they are done on time. They will keep you abreast of any upcoming changes. The immigration system can be difficult to navigate, the right support can take some of the stress off. 

What Should You Do Right Now?

If it is time to renew your status get help now to make sure your DACA application is in before the case is heard. Keep up with the latest news and connect with agencies that are in support of the DACA program. Don’t panic, keep moving forward in a positive direction and contact us.