Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Supreme Court on June 18, 2020, blocked the Trump administration’s attempt to rescind the DACA program, which protects hundreds of thousands of immigrants brought to the United States as children from potential removal, and offers them work authorization. The Court based its decision in Department of Homeland Security v. Regents of the University of California on the Department of Homeland Security’s failure to offer sufficient justification for ending the relief program, in violation of the Administrative Procedure Act (APA). This landmark decision provides much-anticipated relief and work authorization security for the approximately 700,000 foreign nationals who are active recipients of the DACA program, reflecting more than 190 countries of origin.1
The DACA program dates to June 2012, when the Secretary of Homeland Security issued a memorandum (DACA Memorandum) announcing an immigration relief program for “certain young people who were brought to this country as children.” The program became known as Deferred Action for Childhood Arrivals (DACA) and allows certain unauthorized foreign nationals who entered the United States as children to apply for two-year grants of forbearance of removal from the country. 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) and instructs U.S. Citizenship and Immigration Services (USCIS) to accept applications to determine whether these individuals qualify for work authorization during the period of deferred action.
Eligibility and Relief
DACA relief was originally made available to undocumented childhood arrivals who were under age 31 in 2012; have continuously resided here since at least 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety. In November 2014, DHS issued a memorandum announcing it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years.
Individuals granted DACA relief are eligible for work authorization (in the form of an Employment Authorization Document). Pursuant to other regulations, deferred action recipients are considered “lawfully present” and thus eligible to receive Social Security and Medicare benefits.2
In 2017, then-Attorney General Jeff Sessions sent a letter to then-Acting Secretary of Homeland Security Elaine Duke, advising that DHS should rescind the DACA program, based on his conclusions that it was unlawful and created “without proper statutory authority.” Subsequently, Duke issued a memorandum rescinding the program. Affected individuals and third parties challenged the rescission in multiple district courts, alleging that the Acting DHS Secretary had violated the APA by failing to adequately explain the rationale for her decision.
Multiple U.S. district courts have since entered coextensive, nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious.3 These injunctions require the agency to allow DACA recipients to “renew their enrollments.” The matter eventually wound its way to the Supreme Court.
Supreme Court Decision
The Court concluded that the administration indeed failed to provide sufficient justification for its decision to end the relief program and did not comply with the procedural requirements of the APA. The APA requires agencies to engage in “reasoned decision-making,”4 and directs that agency actions be “set aside” if they are “arbitrary” or “capricious.”5 The decision, penned by Chief Justice Roberts,6 acknowledges, “[w]e do not decide whether DACA or its rescission are sound policies.” The Court went on to state, “‘[t]he wisdom’ of those decisions ‘is none of our concern.’ We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
Among other factors, the Court found that the then-acting Secretary of Homeland Security failed to consider the possibility of retaining only the “forbearance from removal” component of the DACA program (while eliminating benefits eligibility) and did not consider potential hardships incurred by DACA recipients as a result of termination. The Court determined that the rescission did not contain a sufficiently reasonable explanation to rationalize ending the program.
As a result of this decision, DACA recipients may continue to renew membership in the program that offers employment authorization and temporary protection from deportation. Practically, employers that need to monitor their employees’ status for I-9 purposes, should monitor the delays in adjudication of the employment authorization extensions.
We will continue to monitor evolving agency guidance in light of the decision, as well as available opportunities for employers to utilize these renewed protections for DACA employees.
1 The Court does not directly address whether USCIS must begin to process new DACA applications. However, the Court expressly acknowledges that the “judgment in NAACP, No. 18-588, is affirmed,” which is one of the three district court orders forming this consolidated case and mandating that the memorandum terminating the DACA program be vacated in entirety (reinstating the status quo as it was before September 5, 2017 and allowing for acceptance of first-time applications). USCIS has not yet provided guidance as to whether it will begin accepting new DACA applications, in addition to processing renewals, as a result of the decision. Still, USCIS issued a statement immediately following the decision that “today’s court opinion has no basis in law,” which indicates a move away from the more liberal interpretation that new applications will be allowed.
2 See 8 CFR §1.3(a)(4)(vi); 42 CFR§417.422(h) (2012).
3 Regents of the University of California v. DHS, No. 3:17-cv-05211 (N.D. C.A., Jan. 9, 2018) (order denying FRCP 12(b)(1) dismissal and granting provisional relief); Wolf, et al. v. Batalla Vidal, et al. 291 F.Supp.3d 260 (E.D.N.Y. 2018).
4 Michigan v. EPA, 576 U. S. 743, 750 (2015).
5 5 U. S. C. §706(2)(A).
6 Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor joined the decision.