On Thursday, June 18, the Supreme Court rejected the Trump Administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants brought to the country as children, known as “Dreamers.” The 5 to 4 decision was written by Chief Justice John G. Roberts Jr. and joined by the court’s four liberal justices. The Supreme Court held that the Department of Homeland Security (DHS)’s effort to terminate the DACA program was arbitrary and capricious, and remanded the case for further consideration. The decision will allow Dreamers across the country to continue to have temporary work authorization and protection from deportation. It is unclear, however, whether the decision will cause DHS to accept new applications from individuals who have never before been granted deferred action under DACA. The fate of DACA remains uncertain as the Court has made clear that the President can still end DACA —but it must go through the right process to do so.

By way of background, DACA was established by the Obama administration to provide temporary relief to Dreamers. On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and are eligible to apply for work authorization. Individuals whose cases are deferred and who are granted work authorization will be issued an Employment Authorization Document (EAD), which is an acceptable List A document for I-9 purposes establishing both identity and work eligibility. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status. In September 2017, the Trump administration announced it would be rescinding DACA, arguing that the program was unlawful because it sanctioned an ongoing violation of federal immigration law.

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