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An Uncertain Future for DACA Recipients

By Brianne Donovan, Staff Editor

On Tuesday, November 12, 2019, the Supreme Court of the United States heard oral arguments for three consolidated cases regarding the Department of Homeland Security’s (DHS) decision to rescind Deferred Action for Childhood Arrivals (DACA).[1] The Supreme Court is tasked with deciding: “(1) [w]hether DHS’s decision to wind down the DACA policy is judicially reviewable” and (2) “[w]hether DHS’s decision to wind down the DACA policy is lawful.”[2]

Seven years ago the Department of Homeland Security, under the Obama administration, created DACA to protect children of undocumented parents from deportation proceedings.[3] Under DACA, children who qualified attained protection from removal, driver’s licenses, and employment authorization so long as they met certain requirements.[4] U.S. Citizenship and Immigrations Services, a component of Department of Homeland Security lists requirements such as:

  • Arriving in the United States prior to the applicant’s sixteenth birthday;
  • Being between the ages of fifteen and thirty-one as of June 15, 2012;
  • Currently enrolled in school, graduated, or having veteran status; and
  • Not having a criminal record that includes a felony, significant misdemeanor, or more than three misdemeanors, or being a national security threat.[5]

In 2017, the Trump administration announced a recision of DACA, stating that the Department of Homeland Security would neither be accepting new applications nor renewing previously-approved applications.[6] The administration stated that DACA exceeded the scope of presidential authority and recommended that Congress use its authority to decide on DACA[7] (in June of 2019, the House of Representatives passed a bill that would allow DACA-recipients to have 10 years of legal residence and a path to citizenship.[8] However, it is not likely that the bill will be voted upon in the Senate.[9])

In response to DACA’s recision, three cases that eventually consolidated and made their way up to the Supreme Court were initiated, in New York, California, and Washington, D.C.[10] Plaintiffs allege that in rescinding DACA, the administration did not comply with notice-and-comment requirements for rule promulgation under the Administrative Procedure Act, and that the courts should invalidate the decision as arbitrary and capricious.[11] They also question the constitutionality of the decision as contrary to the fifth and fourteenth amendment’s equal protection and due process clauses.[12]

The lower courts issued an injunction on the government’s recision, allowing previously approved recipients to file for renewal of status.[13] The Solicitor General, Noel Francisco, filed a petition for the Supreme Court to review the cases, and the Supreme Court granted the request in June.[14] The government is arguing that the judicial branch does not have the authority to review the policy decision to rescind DACA, as it was based on the executive branch’s discretion to prosecute or not prosecute.[15]

After granting certiorari and allowing briefs to be filed by both parties, the Supreme Court heard oral arguments.[16] It is anticipated that a decision will be issued during early summer of 2020 but could possibly be issued much earlier.[17] It is unclear how the Supreme Court will rule, but many sources believe that the conservative majority may rule in favor of recision.[18] The key deciding votes will be cast by Chief Justice Roberts and Justice Kavanaugh.[19]

Roughly 800,000 immigrants have benefited from DACA, with 669,080 people maintaining DACA status as of April 2019.[20] DACA has remained fairly politically uncontroversial. A recent Gallop poll found that 83% of all Americans, Democrat and Republican, favor a proposal to allow “immigrants, who were brought to the U.S. illegally as children, the chance to become a U.S. citizen if they meet requirements over a period of time.”[21]

Many DACA holders, known as DREAMers, have used the program as a vehicle for social mobility that would not have occurred otherwise.[22] For example, Harvard’s Immigrant Initiative conducted a report on the impact of DACA, and found that respondents who completed a certificate or licensing program saw 68% increases in hourly salaries, with more than 78% increasing yearly salaries.[23] Moreover, many respondents in the study used their DACA status to attain higher education, with many recipients going on to medical or law school.[24] For now, the fate of these recipients remains uncertain.

[1]Nina Totenberg, Supreme Court May Side with Trump on ‘DREAMers’, Nat’l Pub. Radio: Morning Edition(Nov. 13, 2019), https://www.npr.org/2019/11/13/778545559/supreme-court-may-side-with-trump-on-dreamers.

[2]Petition for a Writ of Certiorari Before Judgment at I, U.S. Dep’t Homeland Sec’y v. Regents U.C., (No. 18-587) 2018 WL 5802400.

[3]Renae Reints, The Supreme Court Will Hear 3 DACA Cases Today. Here’s What’s at Stake, Fortune(Nov. 12, 2019), https://fortune.com/2019/11/12/supreme-court-daca-hearing-update-news/.

[4]Robert G. Gonzales, SayiL Camacho, Kristina Brant & Carlos Aguilar, Immigr. Initiative Harv., The Long-Term Impact of DACA: Forging Futures Despite DACA’s Uncertainty6 (2019), https://immigrationinitiative.harvard.edu/files/hii/files/daca_report_2019.pdf.

[5]U.S. Citizenship & Immigr. Services, Consideration of Deferred Action for Childhood Arrivals (DACA), https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca#guidelines(last updated Feb. 14, 2018).

[6]Tal Kopan, Trump Ends DACA But Gives Congress Window to Save it, CNN(Sept. 5, 2017), https://www.cnn.com/2017/09/05/politics/daca-trump-congress/index.html.

[7]Tal Kopan, Trump Ends DACA But Gives Congress Window to Save it, CNN(Sept. 5, 2017), https://www.cnn.com/2017/09/05/politics/daca-trump-congress/index.html.

[8]Felicia Sonmez, House Passes Immigration Bill to Protect ‘Dreamers,’ Offer a Path to Citizenship, Wash. Post(June 4, 2019), https://www.washingtonpost.com/powerpost/house-poised-to-pass-immigration-bill-that-would-protect-dreamers/2019/06/04/bac5cf98-86d7-11e9-a491-25df61c78dc4_story.html.

[9]Joe Perticone, The House of Representatives Just Passed a Sweeping Immigration-Reform Bill that Would Provide a Pathway to Citizenship for DACA Recipients, Bus. Insider (June 4, 2019), https://www.businessinsider.com/house-passes-pathway-to-citizenship-daca-recipients-trump-immigration-2019-6.

 

[10]Department of Homeland Security v. Regents of the University of California, Oyez, https://www.oyez.org/cases/2019/18-587(last visited Dec. 1, 2019).

[11]Department of Homeland Security v. Regents of the University of California, Oyez, https://www.oyez.org/cases/2019/18-587(last visited Dec. 1, 2019).

[12]Department of Homeland Security v. Regents of the University of California, Oyez, https://www.oyez.org/cases/2019/18-587(last visited Dec. 1, 2019); Renae Reints, The Supreme Court Will Hear 3 DACA Cases Today. Here’s What’s at Stake, Fortune(Nov. 12, 2019); Nina Totenberg, Supreme Court May Side with Trump on ‘DREAMers’, Nat’l Pub. Radio: Morning Edition(Nov. 13, 2019), https://www.npr.org/2019/11/13/778545559/supreme-court-may-side-with-trump-on-dreamers.

[13]U.S. Citizenship & Immigr. Services, Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction, https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction

(last updated July 17, 2019); Symposium: Justices to Review Dispute Over Termination of DACA,SCOTUSBlog (Sep. 10, 2019), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/.

[14]Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA,SCOTUSBlog (Sep. 10, 2019), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/.

[15]Nina Totenberg, Supreme Court May Side with Trump on ‘DREAMers’, Nat’l Pub. Radio: Morning Edition(Nov. 13, 2019), https://www.npr.org/2019/11/13/778545559/supreme-court-may-side-with-trump-on-dreamers.

[16]DACA Heads to the U.S. Supreme Court: Where We Are Now & What Could Happen Next, Nat’l Immigr. L. Ctr.(Sept. 25, 2019), https://www.nilc.org/issues/daca/daca-heads-to-scotus-scenarios/.

[17]DACA Heads to the U.S. Supreme Court: Where We Are Now & What Could Happen Next, Nat’l Immigr. L. Ctr.(Sept. 25, 2019), https://www.nilc.org/issues/daca/daca-heads-to-scotus-scenarios/.

[18]See Priscilla Alvarez & Ariane de Vogue, Supreme Court Justices Seem Split on DACA Ruling, CNN (Nov. 12,2019), https://www.cnn.com/2019/11/12/politics/daca-supreme-court-arguments/index.html;

Alan Gomez,DACA: Even a Supreme Court Win for Trump Could Create Tough Political Choices in 2020, USA Today(Nov. 12, 2019), https://www.usatoday.com/story/news/nation/2019/11/12/supreme-courts-daca-decision-create-political-nightmare-trump/2576085001/;Ian Millhiser, One Way or Another, the Supreme Court is Likely to Let Trump End DACA, Vox (Nov. 12, 2019), https://www.vox.com/policy-and-politics/2019/11/12/20961371/daca-supreme-court-dreamers-gorsuch-kavanaugh; Nina Totenberg, Supreme Court May Side with Trump on ‘DREAMers’, Nat’l Pub. Radio: Morning Edition(Nov. 13, 2019), https://www.npr.org/2019/11/13/778545559/supreme-court-may-side-with-trump-on-dreamers; Pete Williams, Supreme Court Appears Inclines to Let Trump End DACA Program, NBC News (Nov. 12, 2019), https://www.nbcnews.com/politics/supreme-court/supreme-court-appears-inclined-let-trump-end-daca-program-n1080796.

[19]See Priscilla Alvarez & Ariane de Vogue, Supreme Court Justices Seem Split on DACA Ruling, CNN (Nov. 12,2019), https://www.cnn.com/2019/11/12/politics/daca-supreme-court-arguments/index.html;Pete Williams, Supreme Court Appears Inclines to Let Trump End DACA Program, NBC News (Nov. 12, 2019), https://www.nbcnews.com/politics/supreme-court/supreme-court-appears-inclined-let-trump-end-daca-program-n1080796.

[20]Robert G. Gonzales, SayiL Camacho, Kristina Brant & Carlos Aguilar, Immigr. Initiative Harv., The Long-Term Impact of DACA: Forging Futures Despite DACA’s Uncertainty6 (2019), https://immigrationinitiative.harvard.edu/files/hii/files/daca_report_2019.pdf.

[21]Frank Newport, Americans Oppose Border Walls, Favor Dealing With DACA, Gallup (June 20, 2018), https://news.gallup.com/poll/235775/americans-oppose-border-walls-favor-dealing-daca.aspx?g_source=link_NEWSV9&g_medium=TOPIC&g_campaign=item_&g_content=Americans%2520Oppose%2520Border%2520Walls%2c%2520Favor%2520Dealing%2520With%2520DACA.

[22]Robert G. Gonzales, SayiL Camacho, Kristina Brant & Carlos Aguilar, Immigr. Initiative Harv., The Long-Term Impact of DACA: Forging Futures Despite DACA’s Uncertainty6 (2019), https://immigrationinitiative.harvard.edu/files/hii/files/daca_report_2019.pdf.

[23]Robert G. Gonzales, SayiL Camacho, Kristina Brant & Carlos Aguilar, Immigr. Initiative Harv., The Long-Term Impact of DACA: Forging Futures Despite DACA’s Uncertainty6 (2019), https://immigrationinitiative.harvard.edu/files/hii/files/daca_report_2019.pdf.

[24]Robert G. Gonzales, SayiL Camacho, Kristina Brant & Carlos Aguilar, Immigr. Initiative Harv., The Long-Term Impact of DACA: Forging Futures Despite DACA’s Uncertainty6 (2019), https://immigrationinitiative.harvard.edu/files/hii/files/daca_report_2019.pdf.