VISA-IMMIGRATION CORNER: Supreme Court DACA decision is ‘reprieve,’ not victory

On June 18, 2020, the US Supreme Court issued its DACA decision, but it did not actually uphold DACA.

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Instead, it based its decision on procedural technicalities, that the government did not properly terminate or rescind it.

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The DACA decision is more like a temporary reprieve, rather than a victory. Pres. Trump has vowed to continue his efforts to terminate DACA.

The Supreme Court specifically stated,

“The dispute before the court is not whether DHS may rescind DACA.

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All parties agree that it may.

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The dispute is instead primarily about the procedure the agency followed in doing so.”

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“We do not decide whether DACA or its rescission are sound policies…

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We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.

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Here the agency failed to consider the conspicuous issues of whether to refrain forbearance and what if anything to do about the hardship to DACA recipients.”

By way of background, Pres. Obama implemented DACA in 2012.

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Five years later, in September 2017, DHS issued a memo to terminate DACA because it was “unlawful.”

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Lawsuits followed, challenging DHS’s justification for terminating the program, and a second DHS memo was issued in June 2018, adding additional reasons for terminating the DACA program.

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That was the issue with the Supreme Court.

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The Supreme Court stated that the justification for revoking DACA had to be based on the original 2017 memo, and DHS could not add or cure deficiencies by the later 2018 memo, adding new reasons or justifications.

The Supreme Court noted that DHS could have dealt “with the problem afresh by taking new agency action.”

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Had DHS started over and issued a new memo rescinding DACA, rather than trying to supplement or amend the original memo, it would’ve been okay.

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Instead, DHS stuck with the original memo.

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Therefore, DHS was limited to the agency’s original reasons or justification in its 2017 memo.

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Had they started over (or anew) with just the 2018 memo, DHS might have won.

For example, I face similar issues regularly, when a client consults about a denial. We evaluate whether it is better to appeal that denial or file a new petition or application.

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Often, it is faster and easier to file a new case, rather than trying to cure the defects of the previous filing.

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In the DACA case, DHS decided to “double down” and continue to rely on its original 2017 memo to justify its termination of DACA, rather than just “refile” in 2018.

Pres. Trump has already vowed to continue his efforts to terminate DACA.

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That’s why this decision is only a temporary reprieve, and would not result in a green card for a DACA recipient.

Perhaps there are ways by which a DACA person could be eligible for a green card.

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If they have work authorization, and an employer is willing to petition them, that could be an avenue, if they are eligible to adjust status in the US or are eligible for a provisional waiver.

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That’s why DACA recipients should consult with an attorney to determine if there are legitimate ways to legalize their status, rather than relying on their DACA work authorization forever.

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I also blame Congress for this problem.

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Where is Congress in passing the DREAM Act, which was a way for DACA applicants to get green cards?

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It was only because Congress refused to act that Pres. Obama implemented the DACA program.

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When Pres. Trump proposed to terminate DACA, he put it off for six months, expressly stating he was doing so to give Congress time to act.

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They did not. If only Congress would pass the DREAM Act, that would end the uncertainty and anxiety now being suffered by DACA applicants.

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