People in the United States protected under the Deferred Action for Childhood Arrivals (DACA) program – commonly known as DREAMers – have been sitting in fear ever since the current administration decided to take their decision to remove the DACA program to the Supreme Court. In a brief filed late August 2019, the Trump administration purported that the DACA program is “illegal” and “unconstitutional” from the time it was instituted in 2012. As a result the future of DACA is currently unknown.
History of Current Administration vs DACA
The Trump administration announced their plan to end the DACA program in September 2017. Since then, several lawsuits have been filed declaring the termination unlawful. As a result, the U.S. District Courts of New York, California, and the District of Columbia issued nationwide injunctions halting the termination, allowing over 650,000 immigrants renew their temporary status. In June 2019, the Supreme Court agreed to review the case. The Supreme Court heard oral arguments on this case in early November 2019, and is expected to issue its decision in the spring of 2020.
Potential Outcomes
What is the Future of DACA and what should I do? It is impossible to predict how the Courts shall rule, but what we can do is prepare for every outcome. Below is a list of some different decisions the Court could reach, as well as potential outcomes for each decision.
1. The Supreme Court concludes that courts do not have jurisdiction to review the termination of DACA
● By removing the DACA program from its jurisdiction, the Supreme Court effectively gives the current administration full rights to halt the injunctions currently allowing DACA renewal applications. This means that the plan to end DACA may likely proceed, and any pending DACA applications would fall to them to adjudicate.
● Fortunately, by removing this from the Court’s purview, a future administration could reinstate a similar program to DACA – one that may even provide protections beyond what DACA currently does. If this decision holds, the Court would not be able to challenge this program.
2. The Supreme Court concludes that courts do have jurisdiction to review the termination of DACA, and rules that the termination is lawful
● If the Court rules that the termination of DACA is lawful, the extent of the consequences will depend on how the Courts have reached their decision: If the Court rules that the DACA program itself is unlawful, the government could immediately stop accepting DACA applications, renewal or otherwise. It is possible that current work permits will remain valid until expiration, but this rests on the current administration’s reaction to this decision. If the Courts instead decide the DACA program was legitimate, but the process to end it was similarly
legitimate, the same rules apply, but the current administration may still process any DACA renewal applications pending decision.
● Either of the above two decisions places pressure on Congress to take legislative action to replace the Executive Order for DACA. This could be either good or bad for those currently under deferred action, depending on the specifics of the program that takes the place of DACA.
3. The Supreme Court concludes that courts do have jurisdiction to review the termination of DACA, and rules that the termination is unlawful
● If the Court decides the termination of DACA is unlawful, it is possible that the program reverts to how the program functioned before the Trump administration announced their intention end DACA. At that time, renewals, new first-time applications, and advance parole were available for anyone eligible. This also leaves some hope that DAPA may be implemented for the parents of DACA recipients. However, this all depends on the current administration’s reaction to the ruling – it is possible that they would try to end DACA again using different legal reasoning.
What Can I Do Now?
If you are currently protected under the DACA program, our immigration law firm recommends filing for renewal as soon as possible. We are hopeful that having an application filed in early 2020 will be adjudicated before the Supreme Court decision, and having an application on file during the decision can increase your chances of extending your temporary status for as long as possible. If we can help you in renewing your DACA or assist you with any other immigration matters, please email or call one of our immigration attorneys or at (619) 299-9600.
