A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, June 19, 2020

Supreme Court Upholds DACA

Dreamers can now breathe a little easier. Years after the Trump administration first sought to end
DACA (Deferred Action for Childhood Arrivals), the split U.S. Supreme Court made the decision on Thursday to uphold the program.

DACA provides temporary protection to "dreamers", people that were illegally brought to the US as a child, granting them work authorization and other privileges. Specifically, it applies to current students or honorably discharged veterans who were under 31 years of age as of 2012. They must also have lived in America since January 1, 2020 and completed high school. DACA prevents deportation of many young people who know America as their home and have barely any memory of their birth country.  Individuals who have a serious criminal background or pose a threat to national security or public safety are not eligible for DACA.

The decision doesn't guarantee that DACA is immediately reinstated or here to stay. President Trump and the Department of Homeland Security (DHS) have both voiced their displeasure on the decision. It is likely that this ongoing discord will complicate DACA procedurally down the road, possibly through tightened requirements and adjudication.

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Furthermore, the decision blocked the rescission on the basis that proper rule-making procedures were not followed. Otherwise, Chief Justice Roberts writes that "the wisdom" of DACA policy and rescission "is none of our concern". Were the Administrative Procedure Act (APA) properly followed, the 5-4 decision could have been vastly different -- and there is nothing about this decision that stops DHS from launching another attempt to cancel DACA by following the proper legal procedures. 

There are approximately 700,000 to 800,000 DACA recipients in the US.  The actual number of dreamers can be in the millions, as many of them are afraid to come forward due to fear of apprehension or simply ignorance of their rights.  Past legislative efforts such as the DREAM Act have failed to materialize, but ultimately this is an issue that must be and should be addressed by Congress. 

Still, the decision is good news. DACA has not been eliminated, giving dreamers a chance to remain and work in the country. For now, we must wait for the release of more specific information to know when and how people can apply for DACA benefits such as employment authorization documents. 

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