DACA: Impact of the Supreme Court decision

On June 18, 2020, the United States Supreme Court ruled that DHS's decision to terminate the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act. Consequently, the Court referred the cases to DHS to "consider the problem again."

According to the decision of the Court USCIS must continue to process DACA applications (as described in the USCIS guidance established before the Supreme Court decision):

People who currently have DACA: Current DACA recipients can submit a DACA renewal application.

People whose DACA expired a year or less ago: Recipients whose previous DACA expired a year or less ago can still submit a DACA renewal application.

People whose DACA expired more than a year ago: Recipients whose previous DACA expired more than a year ago cannot submit a DACA renewal application, but they can submit an initial DACA application.

People whose DACA was canceled: DACA recipients whose previous DACA was canceled at any time cannot apply for DACA as a renewal, but they can submit an initial application for DACA.

To comply with the court order, the USCIS will need to publish guidance on processing the following applications that were suspended under previous court orders:

People Who Have Not Previously Received DACA: The Court's decision of June 18, 2020 requires DHS to maintain the DACA program unless and until DHS follows the correct procedure to terminate it.

According to the American Immigration Lawyers Association (AILA), “USCIS should immediately publish guidance on processing new initial DACA applications.

Advance Parole Applications: The court's decision of June 18, 2020 requires DHS to maintain the DACA program unless and until DHS follows the correct procedure to terminate it.

Because DACA-based advance parole was part of the DACA 2012 program, the USCIS must immediately publish guidance on processing parole applications submitted by DACA recipients.

Professionals and their clients can consider several factors when deciding whether to submit a new initial application for DACA before issuing the guidance, including:

1. The possibility that the administration can issue a new memorandum that rescinds DACA before the applicant receives a decision;
   
2. That, in the absence of guidance, USCIS officers will reject new initial applications or accept and reject them; and
   
3. That USCIS is experiencing significant processing delays, as well as a budget shortfall that may further delay awards. Given the uncertainty surrounding DHS plans, and also given the state of travel during the COVID-19 pandemic, AILA does not recommend that professionals encourage their DACA clients to apply for parole until DHS considers the topic.

Whats Next?

While the Supreme Court's decision is an incredible victory, DHS still has authority over the DACA program, as well as the fate of DACA recipients. For now, DHS should continue with the program and continue to process DACA applications, but it remains to be seen how it will comply with the court's order. The Court's opinion leaves open the possibility that DHS may attempt to issue a new memorandum terminating DACA that rectifies the deficiencies in its previous memorandum. Such guidance could come very quickly or it could be postponed until a future time, such as after the November presidential elections.

The ultimate responsibility for granting lasting relief to Dreamers rests not with the executive branch but with Congress. The overwhelming majority of Americans (eight out of ten) across the political spectrum want Dreamers to remain in the United States. With such resounding support, AILA urges Congress not to delay any longer and pass bipartisan legislation granting the Dreamers permanent legal status. "