On June 18, 2020, the Supreme Court issued its much-anticipated decision on Deferred Action for Childhood Arrivals, or DACA. Fortunately, the ruling does not terminate DACA, as many had feared it would. While not delving into the politics behind the policy, the High Court held that the Administration’s rescission was “arbitrary and capricious” and that the agency failed to reasonable explanations for its actions. The upshot is that the case essentially reinstates the 2012 DACA program, allowing individuals who have DACA to continue filing for renewals. Furthermore, those whose DACA has expired may also file deferred status, though for some it will be a renewal application, and for others, an initial application (depending on how long the lapse is). What is very interesting, though, and perhaps the best aspect of the decision, is that those who have never been granted DACA appear to be eligible to file initial applications. Additionally, since DHS is required to maintain the original DACA program, it also appears that DACA recipients should, in theory, be able to file for advance parole-special permission to leave and re-enter the US.
Unfortunately, USCIS has yet to publish official guidance implementing the Supreme Court’s ruling. If anything, the agency has adopted a recalcitrant posture, stating the following: “[the court opinion] has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.” The defiant tenor of this statement has created more uncertainty and confusion for individuals who may have missed out on DACA the first time but want to apply now. The risk is that initial applications as well as applications for advance parole may possibly be rejected by USCIS in the absence of further instructions or guidance from the agency. Moreover, it is still technically possible that the government may try to terminate the program again, but this time, tailoring its methods to conform with the Supreme Court’s decision. (This would not be the first time, as the Administration put forth several iterations of the “Muslim ban” before finally passing muster.)
So while the ruling is, without doubt, a positive one, it is nonetheless an imperfect one that does not fully resolve the issue and fate of millions of dreamers in this country.