U.S. Supreme Court Blocks Termination of DACA, Keeping Alive the Immigration Relief Program for Hundreds of Thousands of Childhood Immigrants

CATEGORY: Special Bulletins
CLIENT TYPE: Public Education
PUBLICATION: LCW Special Bulletin
DATE: Jun 19, 2020

On June 18, 2020, the United States Supreme Court ruled that the immigration relief program known as Deferred Action for Childhood Arrivals (“DACA”) was arbitrarily and capriciously rescinded by the Acting Secretary of Homeland Security.  The Decision of the Court was reached by a 5-4 vote of the Supreme Court Justices.  Chief Justice Roberts delivered the opinion joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor.

In 2012, the Department of Homeland Security (DHS) implemented DACA as an immigration relief program allowing young persons illegally brought into the United States as children to apply for a renewable two-year forbearance from deportation.  The DACA program applies to childhood arrivals who: (1) were under age 31 in 2012; (2) continuously resided in the U.S. since 2007; (3) are either current students, completed high school, or honorably discharged veterans; (4) are not convicted of any serious crimes; and (5) do not threaten national security or public safety.  The DACA program also provides various federal benefits including eligibility for work authorization, Social Security, and Medicare.

In November 2014, DHS sought to expand DACA eligibility and implement a new deferred-removal relief program for unauthorized aliens who are parents of U.S. citizens or lawful permanent residents of the U.S. (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  However, several states took legal action to prevent DHS’s intended deferral program initiatives.  Ultimately, a divided Fifth Circuit Court of Appeals upheld a preliminary injunction preventing DHS from implementing the intended initiatives.  The Fifth Circuit found that DHS’ DAPA program and expansion of DACA were substantive rules that required notice and comment and was contrary to the Immigration and Nationality Act (“INA”) because it conferred benefits on unauthorized aliens. In June 2017, following a change in Presidential administrations, DHS rescinded the DAPA memorandum due to the preliminary injunction and ongoing litigation.  In September 2017, the United States Attorney General sent a letter to the Acting Secretary of Homeland Security recommending that DHS should terminate DACA because it suffered from the same legal defects found by the Fifth Circuit as to the DHS’ attempts to expand DACA and implement DAPA.

Acting on the Attorney General’s opinion, the DHS terminated DACA with a “wind-down” process. The DHS no longer accepted new DACA applications. All DACA recipients’ benefits would expire with no additional prospect for renewal, except that DACA recipients whose benefits were set to expire within six months could apply for a one-time two-year renewal.  Three groups of plaintiffs, including individual DACA recipients, the Regents of the University of California, and the NAACP, filed suit in various federal District Courts challenging the Acting Secretary’s decision within days of the DHS rescission announcement.  All three District Courts ruled for the plaintiffs, and the Government appealed all three cases to their respective Circuit Court of Appeals.  While those appeals were pending, the Government filed three petitions for review to the U.S. Supreme Court. The Court granted the petitions and consolidated the cases for argument.  (Regents of the University of California v. Dept. of Homeland Security, (California); Batalla Vidal v. Chad Wolf, Acting Secretary of Homeland Security (New York) and National Association for the Advancement of Colored People v. Trump (D.C.))

The Supreme Court held that the DHS violated the federal Administrative Procedure Act because the decision to terminate DACA was “arbitrary and capricious.” The Acting Secretary of the DHS relied only on the opinion of the Attorney General and failed to conduct a reasoned analysis of the differences between DACA and aspects of the prior legal challenges to DHS’ intended DACA expansion and DAPA which were relied upon by the Attorney General.  The Acting Secretary also failed to address whether there was “legitimate reliance” on the DACA policy by DACA beneficiaries that outweighed the competing policy concerns.

The Court found that although Acting Secretary Duke was bound by the Attorney General’s determination that DACA was illegal, the DHS still had discretion to make important policy decisions on how to address that determination.  The Court stated that the core reasoning of the Fifth Circuit’s DAPA decision was the inappropriate granting of benefits to unauthorized aliens on a class-wide basis.  The Court explained that there is more to both DAPA and DACA than the benefits to work in the United States and eligibility for Social Security and Medicare, specifically the forbearance from deportation that is within the DHS’ discretion.  The Fifth Circuit noted that its decision did not require alteration of “enforcement priorities.” The Court held that the Acting Secretary’s forbearance authority was left “unimpaired.”  The Court further explained that the Attorney General did not address DACA’s forbearance policy nor compelled DHS to abandon that policy.  Accordingly, the Court concluded that because of Acting Secretary Duke’s reliance on only the Attorney General’s determination, her memo rescinding DACA offered no reason for terminating its forbearance provisions and that this insufficiency rendered her decision arbitrary and capricious.  The Court also determined that Acting Secretary Duke failed to consider the reliance interests of DACA recipients, who stood to lose status in their degree programs, careers, and purchase of property due to DHS’ decision.  The Court found that this failure to consider such interests further established that the decision to terminate the DACA program was arbitrary and capricious.

However, the Court also held that the Plaintiffs did not allege sufficient facts to raise a plausible inference that termination of DACA was motivated by an unlawful animus constituting an infringement of the equal protection guarantee of the Fifth Amendment’s Due Process Clause.

The Court explained that its ruling did not decide whether DACA or its rescission are sound policies.  All three cases were remanded for further proceedings and the Court explained the “appropriate recourse” is for DHS to reconsider the issues of forbearance and hardship placed on DACA recipients.

Although the Court’s decision keeps DACA at status quo, the DHS still retains the discretion to terminate DACA at a later time, but only after a reasoned analysis of the important aspects of the DACA program and policy considerations in continuing it, as well as consideration and weighing of the interests of those relying upon DACA and alternative accommodations.

Dep’t of Homeland Sec. v. Regents of the Univ. of California, United States Supreme Court Case No. 18-587 (June 18, 2020)