Supreme Court to Rule on DACA

By: Ben Loveman

While the United States and the rest of the world struggle to cope with a pandemic and public health crisis, the United States Supreme Court has continued its work and continues to issue rulings and hear arguments in numerous cases. The Supreme Court is expected to issue a ruling by June, and possibly much sooner, and will decide whether almost one-million beneficiaries of the DACA program will be allowed to continue to renew work permits and avoid removal proceedings.

The Supreme Court’s decision may actually be complicated by the current public health crisis, as briefs before the Court suggest that almost 30,000 DACA recipients have work in the health care field and thus that eliminating their work authorization could jeopardize the health and safety of all U.S. residents. It is unknown if this issue would be enough to sway the conservative leaning Supreme Court and, based on recent rulings and the oral arguments in this case, many experts are predicting that the Supreme Court will allow DACA to be terminated.

In light of the possible, and maybe even likely, end of the DACA program, persons who have DACA should immediately seek alternative options to secure their status in the United States and should consider filing early renewal applications for their current DACA status. While there are no guarantees, it is expected that those with valid DACA work permits would be allowed to continue to work using those permits until they expire even if the Supreme Court allows USCIS to terminate the program. Thus, filing for renewal early could provide much needed additional time in DACA status to allow recipients to find other options.

The case before the Supreme Court arose from a challenge to the Trump Administration’s process for seeking to terminate the DACA program. The challengers argue that the Trump Administration failed to consider all the potential impacts of rescinding the program and therefore unlawfully canceled the program. The challengers prevailed in lower courts and USCIS was forced to continue to accept DACA renewals (but not new initial applications) while the case has worked its way to the Supreme Court for final decision. The case was fully briefed and argued to the Supreme Court and many experts now believe that the Court’s conservative majority is set to allow the termination of DACA to be finalized.

The Supreme Court is now set to decide whether the Trump Administration’s termination of DACA was done lawfully and thus whether the program should be terminated. If the program is terminated, DACA recipients will not be able to renew their employment authorization and will lose the temporary protection from deportation that came with the DACA program. A decision is expected in the next few months as the Supreme Court is reaching the end of this term and will generally complete decisions in all cases before it by the end of a term.

The DACA program gave hope and opportunity to hundreds of thousands of young immigrants who have known only the U.S. as their home. It allowed these people to work and contribute lawfully to our country. They have largely seized that opportunity and have become integral contributing members of our society. Suddenly eliminating their ability to contribute to their families and our communities, as well as to the country as a whole is a cruel and counter-productive plan. However, the Supreme Court does not get to issue decisions based on whether they think a law is ultimately a good idea or not. They must rule based on their view of what the law compels. Here, it is appears that the majority of the court will find that USCIS and the Trump Administration should be allowed to terminate DACA.

If you or a loved one has DACA, it is highly recommended that you seek the advice of a reputable immigration attorney to explore filing an early extension of your current DACA and to explore other options for more permanent relief. Many new programs and changes to old ones have been implemented in the last several years and may provide a route to residency or employment authorization where none existed before.