By Chloe Tomlinson & Kalpana V. Peddibhotla
On Thursday June 18, 2020, the Supreme Court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA). This decision addressed whether the Trump administration followed proper procedures in its’ decision to end DACA. In a majority 5-4 decision written by Chief Justice Roberts, the Court found that the Trump administration’s decision to end the program was arbitrary and capricious. The Court ruled that the administration acted improperly in terminating the program. This decision upholds temporary relief to over 650,000 DACA recipients.
What is DACA, and who are The Recipients?
“Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.” Harriet Tubman. The DACA recipients, also known as Dreamers, consist of over 650,0000 recipients, who are positively changing our country. They are medical professionals, teachers, activists, students, and parents, to name a few.
The DACA program was implemented on June 15, 2012 by the Obama administration through a memorandum entitled, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”).
The 2012 memorandum stated that,
“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion on an individual basis . . . by deferring action for a period of two years, subject to renewal.”[1]
This program protects undocumented immigrants who were brought to the United States as children but does not provide a path for legal citizenship. It created a two-year grant of deportation relief and work authorization to eligible young unauthorized immigrants. DACA recipients may request work authorization and are eligible for Social Security and Medicare.
The requirements for DACA include:
- Having entered the United States before the age of 16;
- Under the age of 31 as of June 15, 2012;
- Being physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Having continuously resided in the United States since June 15, 2007;
- Having no lawful status on June 15, 2012;
- Being enrolled in school, having earned a high school diploma or its equivalent, or being an honorably discharged veteran of the Coast Guard or Armed Forces; and
- Having not been convicted of a felony, significant misdemeanor, or three or more misdemeanors; or otherwise posing a threat to public safety or national security.
Over 1.3 million people have met the above-mentioned criteria to apply under the DACA program. As of September 30, 2019, approximately 652,880 individuals had active DACA status, according to USCIS. Americans have been largely in favor of this policy. A Pew Research survey conducted in June 2020 found 74 percent of Americans favored granting permanent legal status to immigrants who came illegally to the United States when they were children, while 24 percent opposed.
The Supreme Court Decision blocked the Trump Administration’s attempt to end DACA.
In 2017, the Trump administration announced that it would end the program.[2] On September 4, 2017, the Attorney General sent a letter to the Department of Homeland Security stating that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. [3] Therefore, on September 5, 2017, Acting Secretary Elaina Duke rescinded the June 15, 2012 memorandum. She stated that, due to the complexities associated with this winding down program, there will be a window where certain DACA requests and applications may be adjudicated.
In June 2019 the Supreme Court agreed to hear all three cases regarding DACA, in which the lower courts agreed with the challengers. The challengers argued that the decision to rescind DACA violated the rights of DACA recipients and the Administrative Procedure Act (“APA”). The APA requires there to be an articulated, legitimate justification for an administrative action.
The Supreme Court issued its decision on June 18, 2020, blocking the Trump administration’s attempt to end DACA. It is important to note that the issue decided by the Court was not whether DHS could rescind DACA, but rather, whether the agency followed proper procedures in deciding to end DACA. The focus of the analysis was on the Elaina Duke memorandum, in which, the former Acting Secretary stated that DACA was illegal and should be terminated because it made DACA recipients eligible for benefits such as Social Security, Medicare and the ability to work legally in the United States.[4]
In addressing whether the Agency complied with the procedural requirement that it provide a reasoned explanation for its action, The Court found it had not. Justice Roberts stated that,
“In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.”[5]
The Court concluded that the Department failed to provide adequate reasons for ending the program. The decision did address whether terminating DACA was legal, but rather how the agency failed to comply with the procedural requirement, that it provide a reasoned explanation for its action. Justice Roberts said,
“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”[6]
This decision provides temporary relief to the DACA recipients and allows them to continue to be protected from deportation. However, the Administration is still able to end the program if it provides a new justification for terminating the program.
What Did the President Have to Say?
In response to this ruling, Trump tweeted,
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices, or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”[7]
In his ironic tweet, he claims the Court is politically charged, and immediately thereafter calls for the appointment of partisan Justices. While President Trump advocated for additional Justices in light of this monumental decision, former President Obama tweeted his enthusiasm. This program was implemented in 2012, under the Obama administration. Former President Obama tweeted,
“Eight years ago, this week, we protected young people who were raised as part of our American family from deportation.” “Today, I’m happy for them, their families, and all of us.”[8]
Conclusion and What is Next?
This decision is monumental for DACA recipients. While the Court emphasized that this decision was based on procedural grounds, not the legality of DACA, the ruling allows temporary reliefs for hundreds of thousands of DACA recipients. It also sends the message that in this unprecedented time of chaos in our country, there remains hope for our immigrant community.
This decision is also personal to ImmiCore Law. In June 2011, Kalpana Peddibhotla represented Mandeep Chahal, a Dreamer who was scheduled to be deported. Ms. Peddibhotla invoked the first documented use of the “Morton Memo” which sought discretion to be applied for Ms. Chahal’s deportation. This Memo was a precursor to DACA. One year later, Mandeep Chahal was featured by TIME Magazine along with several other Dreamers in an article that was released just ahead of DACA on June 14, 2012. [9] Ms. Chahal’s act of bravery along with those of countless other young people helped to build the public support that gave President Obama the confidence to issue the DACA order.
In 2018 following Trump’s Easter Tweet attacking Dreamers another of Kalpana’s clients stepped forward to counter President Trump malicious tweet. That call was answered by Ruchir Parikh who told his story to the BBC.[10]
ImmiCore Law is proud of the young people who have and continue to step forward to stand up for themselves and for a humane and fair immigration system. Thank you Mandeep and Ruchir for allowing us to be part of your journey.
[1] App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.)
[2] See Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca
[3] Id.
[4] Opinion analysis: Court rejects Trump administration’s effort to end DACA (Updated), June 18, 2020, https://www.scotusblog.com/2020/06/opinion-analysis-court-rejects-trump-administrations-effort-to-end-daca/
[5] 591 U.S. June 2018, 2020
[6] 591 U.S. June 2018, 2020
[7] President Trump’s tweet posed June 18, 2020 at 8:08 am.
[8] President Obama’s tweet posted June 18, 2020, https://twitter.com/BarackObama
[9]Undocumented Americans, Time Magazine. June 14, 2012 and “For Undocumented Immigrants, Activism Can Invite a Deportation Threat”, The Nation, June 28, 2011.
