On June 18, 2020, the U.S. Supreme Court blocked the Trump Administration’s attempt to terminate the Deferred Action for Childhood Arrivals (DACA) program, ruling that the U.S. Department of Homeland Security (DHS)’s decision to rescind the program was arbitrary and capricious. The DACA program, established by President Obama’s 2012 Executive Order, protects over 700,000 undocumented immigrants who were brought to the U.S. as children. Pursuant to the program, DACA recipients (often referred to as “Dreamers”) may be granted temporary relief from deportation and temporary work authorization. The program does not provide a pathway to permanent resident status in the U.S.
Today’s decision makes clear that the Trump Administration has the authority to continue the DACA program or to rescind it. However, if the Administration elects to rescind the program, DHS must issue a new decision terminating the program and must provide a reasoned explanation as to why the agency is no longer offering protections to DACA recipients.
In the majority opinion, Chief Justice Roberts concluded that DHS “failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.” DHS vs. Regents of the University of California Et Al.
Under current rules, DACA recipients may continue to renew their DACA benefits, including employment authorization. Previously issued employment authorization documents remain valid. DHS may publish a new memorandum terminating the program, this time providing a reasoned explanation for termination, consistent with the requirements of the Administrative Procedure Act and the Court’s holding. Such action could be subject to further legal challenges.
Given the uncertainty stemming from executive action concerning the temporary program and the ensuing legal challenges, it remains incumbent on Congress to enact legislation providing permanent protection for Dreamers.