WASHINGTON, Nov. 11, 2019 — On November 12, the U.S. Supreme Court will hear oral arguments for three cases that will decide the future of the Deferred Action for Childhood Arrivals (DACA) program. Since the program was established in 2012, DACA has allowed young immigrants brought to the U.S. without documents to live, study, work and contribute to the country they call home.
If DACA is terminated, at least 700,000 DACA recipients could be subject to deportation. This includes almost 68,000 members of the LGBTQ community, who are at a heightened risk of violence and persecution if they were to be deported. A decision on the fate of DACA is expected no later than June 2020.
In 2012, the Obama administration established a program through a DHS memorandum known as Deferred Action for Childhood Arrivals (DACA), which allows undocumented immigrants who came to the United States as children to apply for protection from removal through an exercise of prosecutorial discretion. Applicants who met a variety of criteria, such as graduating from high school or serving in the military, could pay a fee of nearly $500 and receive a deferral on removal proceedings, authorization to work, and when otherwise permitted, access to health insurance and driver’s licenses. In the past seven years, DACA has enabled at least 700,000 eligible young adults to work lawfully, attend school, and plan their lives without the constant threat of removal. It has also ensured that 256,000 U.S. citizen children of DACA recipients are able to grow up with their parents.
The Trump Announcement to End DACA and Related Litigation
In September 2017, the Trump administration announced that it would end the DACA program. In response, DACA recipients, states, and other stakeholders filed lawsuits challenging the announcement, and requesting an injunction to prevent the termination of DACA as the litigation proceeded through the courts. Three nationwide injunctions issued by U.S. district courts — in California, New York, and the District of Columbia — have allowed people who previously had DACA to renew their deferred action. However, no new first-time applications have been considered or granted since the attempted termination.
Cases Before the Supreme Court
In June 2019, the U.S. Supreme Court agreed to hear oral arguments in McAleenan v. Batalla Vidal, Department of Homeland Security v. Regents of the University of California, and Trump v. NAACP. The challengers in all three of the cases argue that the termination of the DACA program violated the Administrative Procedure Act and the rights of DACA recipients. The deputy solicitor general of California, Michael Mongan, and Supreme Court advocate Ted Olson, solicitor general of the United States under the George W. Bush Administration, will argue on behalf of a number of individual DACA recipients and the other plaintiffs in these cases, including the regents of the University of California, Microsoft, Princeton University, and the National Association for the Advancement of Colored People (NAACP).
A bipartisan group of 152 current and former Members of Congress filed an amicus brief in support of DACA. More than 140 of the nation’s top businesses and trade associations, collectively representing nearly every sector of the United States economy, also submitted an amicus brief in support of DACA. 21 states and the District of Columbia, where more than half of DACA recipients reside, filed briefs as well as 109 cities and local governments. Other groups that have filed amicus briefs include educators, university officials, former national security officials, civil rights leaders and DACA recipients.
A decision is expected no later than June 2020.
While it is impossible to know exactly how the court will rule, these are the legal questions before the court; whether the court has jurisdiction to hear the case and whether the administration’s decision to terminate DACA was lawful. Here is a non-exhaustive list of three possible decisions the court could reach:
The Supreme Court finds that it does not have jurisdiction to hear the case because the decision to rescind DACA fell squarely within the discretion of the administration by law. If the Court makes this finding, it would likely grant the administration’s motion to dismiss and the DACA rescission would go into effect.
The Supreme Court finds that it does have jurisdiction to hear the case and decides that the Trump Administration’s notice of rescission was unlawful. In this situation the 2012 DACA memo would be in effect, and those already granted DACA status could continue to file renewals, and those who qualify now could file new applications.
The Supreme Court finds that it does have jurisdiction to hear the case and decides that the Trump Administration’s termination of DACA was lawful. In this scenario, the underlying reasons for the court’s decision could affect the timeline for how the DACA program is terminated or scaled back.
The Immigration Hub is a national organization dedicated to advancing fair and just immigration policies. www.theimmigrationhub.org