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The Supreme Court rejects the Administration’s attempt to terminate DACA

The Government must “turn square corners in dealing with the people” said on June 18, 2020, the United States Supreme Court in rejecting the Administration’s explanations why it wants to terminate DACA.  The Government instead of “turning square corners” skipped a few corners and the Court decided that its action in terminating DACA was arbitrary and capricious.   The Chicago Immigration lawyers of Zneimer & Zneimer PC finds very significant that  Supreme Court acknowledged that “there is so much at stake” and  characterized the relationship between the Government and the people as one that has demands on both sides.

Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting).  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)(emphasis added)

On June 18, 2018, the United States Supreme Court determined that the Trump Administration violated the Administrative Procedure Act in their 2017 attempt to terminate DACA.  The Supreme Court did not answer the question whether or not DACA is lawful.  The Court only answered the question whether or not the DHS “complied with the procedural requirements” to provide a “reasoned explanation for its action.”  The Court stated that the Administrative Procedures Act requires agencies to engage in “reasoned decisionmaking” and that the DHS’s decision making was inadequate.

The Court stated:

Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially  when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)

The Court found that the attempt to rescind the program was arbitrary and capricious for several reasons.  According to the Court, the program is not only the DHS’s temporary decision to not deport the young people, or the agency’s forbearance.  The program also provided benefits, which are distinct from the agency’s forbearance.

But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. […]  Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” […] And the result of these adjudications—DHS’s decision to “grant deferred action,” […] is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” […]. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. ….  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)

According to the Court the forbearance from deporting the DACA eligible noncitizens is distinct from providing benefits like work authorization, and the DHS’s failure to consider them separately amounted to an action that is arbitrary and capricious:

Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” […]. But the rescission memorandum contains no discussion of  forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)

The Court also held that  the DHS’s act was arbitrary and capricious because it failed to consider the reliance interest of the DACA applicants that DHS created when it instituted the program and invited young people to apply:

For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and pro-vided benefits only in two-year increments. … But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration… DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)

This decision is a victory for the DACA plaintiffs and all people who have DACA or are qualified to apply for DACA.  The Administration can again try to end the program through a more reasoned executive action.  For the time being, DACA kids can continue to live in 2-year increments.   Only Congress can provide a permanent fix for these young people.

Current DACA recipients can continue to apply for work authorization and other benefits, and will be protected from removal.  They can continue to apply for DACA extensions.  In addition, eligible noncitizens who have not previously applied for DACA can apply for the first time.  It is likely that DACA recipients may be able to apply for advance parole.  Because DACA is a temporary and uncertain fix, DACA recipients should explore other avenues to adjust their status, including through family or employment petitions.   Since the people still have to turn “square corners” when dealing with the Government, the Chicago immigration attorneys of Zneimer & Zneimer are here to help for people who want to apply for DACA or seek other benefits and avenues for immigration.





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