The U.S. Supreme Court Rules that DACA Can Stay, At Least for Now, and First-Time DACA Applicants May Apply!

In a surprising decision, the U.S. Supreme Court ruled on June 18, 2020 that DACA can stay, at least for now. Specifically, the country’s highest court ruled that the Trump administration cannot immediately end the program, which currently protects approximately 700,000 young immigrants from deportation and provides them with work authorization.

President Obama created the program in 2012. President Trump announced he would cancel it in 2017 by claiming that the program was beyond the legal power of any president and that President Obama did not have the authority to create it in the first place. The U.S. Supreme Court did not address the policy itself, but rather only addressed whether the Trump administration complied with the procedural requirement of providing a “reasoned explanation” for cancelling the program. It held that it did not and that the reason given for canceling DACA was “arbitrary and capricious” contrary to federal law that governs administrative agencies.

The ruling does not prevent the Trump administration from cancelling the program in the future. The question in this case was not whether Trump could cancel DACA, because everyone agrees that he can. Instead, the question was whether the administration went about it the right way, and the answer is no. Trump can now provide a more reasoned explanation for cancelling the program, which the lower courts can rule is sufficient.

So what does this mean for those who currently have DACA, previously had DACA, or are eligible for DACA, but never applied?

1. 1. If you currently have DACA, you can continue to renew it. This may not be the case in the future, if the Trump administration provides a satisfactory reason for cancelling the program, but for now DACA renewals may proceed. A DACA renewal may be filed at any time, even if it is more than 6 months in advance of the expiration of the current DACA.

 2. If you previously had DACA, but it has expired, you can also renew it. Same as above. DACA extensions may proceed now, even in cases where the previous DACA expired, but we don’t know how long this will last. The Trump Administration still has the right to cancel DACA if it provides a more satisfactory reason for doing so in the future.

• 3. If you never had DACA, but are eligible, you may file your first-time DACA application now. The Supreme Court’s decision finding that the cancellation of DACA in 2017 was “arbitrary and capricious” means that the DACA program goes back to its original form created by President Obama in 2012, at least until the President Trump can articulate a more acceptable reason for cancelling it. While USCIS has not yet announced that it will begin to accept DACA applications for first-time filers, we believe such guidance is likely forthcoming. To prepare, first, confirm you meet the requirements for DACA, and then begin gathering records necessary for the application, including any and all of your prior immigration records (if any), proof of your continuous presence in the U.S. since June 15, 2007 (e.g. school records, medical records, pay stubs, bank records, traffic tickets, travel records), school records establishing that you are either currently in school or have earned a high school degree or GED (e.g. diploma, transcript) or served in the U.S. military, and any criminal records as evidence that you have not committed any disqualifying crimes. We strongly urge anyone who has ever had any contact with the police or been arrested to first consult with an immigration attorney before filing for DACA.
• 4. What about Advance Parole? Can I travel on my DACA? This remains less clear. While it’s true that the initial 2012 memo establishing DACA permitted Advance Parole applications if the DACA recipient had a compelling reason to travel abroad, this remains a discretionary benefit and USCIS has more authority to limit this benefit. We will need to wait to see what guidance USCIS issues with regard to Advance Parole before we know whether travel abroad is possible for DACA beneficiaries. Furthermore, even if USCIS grants Advance Parole to a DACA beneficiary, its issuance does not guarantee that the individual will be permitted to re-enter the U.S. after a trip abroad. The decision to allow entry to the U.S. has always been the authority of Customs & Border Protection (CBP), a separate agency, and is never guaranteed. Again, we strongly urge any DACA beneficiary considering travel on Advance Parole to consult with an immigration attorney before traveling.

 5. Does this mean that DACA recipients will get green cards or citizens? Unfortunately, no. Congress will still have to act in order to create a path for permanent residency or citizenship to help most DACA beneficiaries. For now, the decision only means that DACA is not yet cancelled and can go back to its 2012 version until Trump provides a more satisfactory explanation for cancelling it.

For now, we recommend any individual who has DACA, had DACA or is eligible for DACA to consult with a qualified immigration attorney to file for this benefit, if eligible. But until Congress acts, the fate of DACA beneficiaries will continue to be precarious as the Trump administration may nevertheless cancel the program in the future. We also recommend consulting regarding whether or not the DACA beneficiary may qualify for permanent residency (i.e. green card) through family-sponsorship, self-sponsorship (e.g. victims of trafficking or violence, or individuals with extraordinary ability), or even employment-based sponsorship. To learn more about whether you may qualify for an employment-based green card while on DACA, please refer to our earlier post on Employment-based Green Cards for Those with DACA.