DACA: Impact of the Supreme Court's decision

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

“According to the Court’s decision, USCIS must continue processing DACA applications (as described in the USCIS guidance established before the Supreme Court decision):

Individuals currently holding DACA: Current DACA recipients may apply for a DACA renewal.

Individuals whose DACA expired one year or less ago: Recipients whose previous DACA expired one year or less ago can still apply for a DACA renewal.

Individuals whose DACA expired more than a year ago: Recipients whose previous DACA expired more than a year ago cannot apply for a DACA renewal, but they can apply for a new DACA.

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

To comply with the court order, USCIS will have to publish a guide on the processing of the following applications that were suspended under previous court orders:

Individuals who have not previously received DACA: The June 18, 2020 Court decision 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 a guide on the processing of new initial DACA applications.”.

Advance requests for parole: The Court's June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows the correct procedure to terminate it.

Because the expedited conditional release based on DACA was part of the DACA program in 2012, the USCIS must immediately publish a guide on the processing of conditional release applications submitted by DACA recipients.

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

1. The possibility that the administration could 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 and reject them; and
   
3. That USCIS is experiencing significant delays in processing, as well as a budget deficit that could further delay adjudications. Given the uncertainty surrounding DHS’s plans, and also given the state of travel during the COVID-19 pandemic, AILA does not recommend that professionals encourage DACA clients to apply for parole until DHS considers the matter.

What's next?

While the Supreme Court’s decision is an incredible victory, DHS still has authority over the DACA program, as well as over the fate of DACA recipients. For now, DHS must continue the program and continue processing 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 rescinding DACA that corrects the deficiencies in its previous memorandum. Such guidance could come very quickly or it could be delayed until a later time, such as after the November presidential election.

The ultimate responsibility for granting lasting relief to the Dreamers lies not with the executive branch but with Congress. The overwhelming majority of Americans (eight out of ten) across the political spectrum want the Dreamers to remain in the United States. With such overwhelming support, AILA urges Congress to move faster and pass bipartisan legislation that grants Dreamers permanent legal status.”