In a 5-4 decision issued today by Chief Justice Roberts, the Supreme Court allowed the Deferred Action for Childhood Arrivals (DACA) program to live on.  While a huge victory for pro-immigrant advocates, it is important to examine what the Supreme Court stated, and what they did not state, before becoming overly euphoric.

Following years of Congressional stalemate, the Obama Administration in 2012 created DACA which granted 'deferred action' status to certain undocumented individuals that arrived in the United States as children, completed high school, attended college or were in the military, and who were not convicted of certain crimes.  It is estimated that approximately 700,000 "Dreamers" - named for the un-enacted legislation, the DREAM Act - were granted this status which meant the government would not seek their removal from the United States.  DACA recipients are permitted to obtain employment authorization, a social security card, and driver license but are required to re-apply every two years for this program which does not lead to permanent resident status nor citizenship.

President Trump campaigned in 2016 that he would abolish DACA and soon after his inauguration, his administration sought to do just that.  Lawsuits and legal challenges to the Administration's move to eliminate DACA worked their way through the legal system culminating in today's decision which, in many ways, should satisfy neither side of the debate. What the decision specifically did not state, is that DACA is lawful.  In fact, several court decisions addressing the proposed, but never-implemented, Deferred Action for Parents of Americans and Lawful Permanent Resident (DAPA) program ruled against the legality of that program and it was feared that those same arguments would prevail in the Supreme Court to strike down DACA as unlawful.  Today's decision did not do that.  Instead, today's decision simply ruled that the manner in which the Trump Administration sought to terminate DACA was improper.  The decision to terminate DACA, according to the Supreme Court, was "arbitrary and capricious" which is really a fancy way of saying, "you made up the reasons" and it was done sloppily.

So, where does this leave DACA?  For now, DACA survives and lives on.  However, should the administration adhere to the requirements of the Administrative Procedures Act and seek to properly terminate DACA it is quite possible that we would see a different result.  Hopefully, Congress can enact legislation to protect these approximately 700,000 young adults who, by definition, were brought to the United States as children through no choice of their own and have lived productive law-abiding lives in the only country they likely ever remember living.  I am proud to state that I have two clients that received DACA and were then able to earn their degrees as Registered Nurses and spent the past several months in NYC hospitals on the front-lines batting the Covid-19 pandemic.  The country is a better place with people like this and Congress should find a way to fix this issue and stop using their lives as a political poker chip.

Contact the Law Offices of Michael Kohler, PLLC for any questions relating to DACA.