DACA and Supreme Court

Posted by Alexander Carl | 29 Jul, 2020 | 0 Comments

What is DACA?

DACA was announced by former President Barack Obama on June 15, 2012 and implemented by then Secretary of Homeland Security Janet Napolitano. The policy has enabled people who came to the United States before the age of 16 to apply for “deferred action,” a form of prosecutorial discretion, and a work permit. The program has protected over 700,000 people in the United States. On September 5, 2017, then Attorney General Sessions announced that DACA would be rescinded. Following that announcement, several litigants have challenged the rescission in the courts and the cases have been consolidated for Supreme Court review.

What did the Supreme Court Decide?

On June 18, 2020, the Supreme Court of the United States held 5-4 that the decision by the DHS to terminate DACA was reviewable in federal court and also “arbitrary and capricious” under the Administrative Procedure Act (APA). On the merits, the Court reasoned that the “agency must defend its actions based on the reasons it gave when it acted” and further that DHS failed to consider “reliance” interests such as a broader renewal period for DACA recipients or a more accommodating termination date. The Court said that while DHS was not required to consider all of the policy alternatives, “it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” The Court remanded all three (consolidated) cases for further proceedings. The Court rejected the claim that the rescission of DACA was motivated by animus in violation of the Equal Protection Clause of the U.S. Constitution. The decision was authored by Chief Justice Roberts, joined by Justice Ginsburg, Justice Breyer, and Justice Kagan. Justice Sotomayor concurred in the judgement in part, dissenting in part, and finding that the Court “prematurely” rejected the equal protection claim “by overlooking the strength of their complaints.” Justice Thomas, joined by Justice Alito, and Justice Gorsuch, dissented. Justice Kavanaugh issued a separate dissent.

Does Today’s Decision Mean the DACA Can Never End?

No. Today’s decision is limited to how the DHS ended DACA in 2017. Specifically, the Court found that DHS failed to provide a reasonable explanation for ending DACA. How and if DHS chooses to proceed in the future (i.e., retaining DACA, issuing a new memorandum/explanation ending DACA, etc.) remains to be seen.

Can I submit an application for DACA for the first time?

The Supreme Court’s decision means that DACA should be fully reinstated, allowing for first time DACA requests. With that said, DHS will need to reopen the DACA policy for new requests consistent with today’s decision. However, this may not happen immediately

I have DACA. Can I renew my DACA?

Yes. If you have been granted DACA before, you should be able to submit an application to renew DACA.

I have DACA. Can I apply for advance parole that allows me to return to the country after traveling outside it?

The Supreme Court’s conclusion that DACA was terminated unlawfully means that advance parole should be reinstated. DHS will need to reopen the DACA policy for advance parole requests consistent with today’s decision. However, this may not happen immediately.

Penn State Law – Center for Immigrants’ Rights Clinic

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Alexander Carl


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