© Farhad Sethna 2020
On June 18, 2020, the Supreme Court issued a decision that will certainly stay written into the history of DACA forever. On that day, a 5 to 4 majority of the Supreme Court, composed of Chief Justice John Roberts, and liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, ruled that Trump’s decision to rescind DACA was ill-advised, ill-conceived, and not supported by adequate reasoning.
What is the practical effect of this Supreme Court decision?
The practical effect is that, at least for the time being, Trump cannot end the DACA program.
What is not clear?
What is unclear is whether or not the administration still needs to entertain new DACA applications, or applications for DACA renewals. All of those existing DACA recipients were slated to have their protected status end within the next couple of years. Now, with this decision, will they get a new lease of life?
What can the administration do?
The administration still has a way out of this mess. The Supreme Court decision did not enshrine DACA into law forever, indeed, it did nothing of the sort. Instead, it essentially remanded the case back to the Department of Homeland Security to enunciate clear and well-defined reasons for terminating the DACA program. The court did not say that the executive did not have the authority to terminate the program. What it said was that the way that the program had been canceled showed a lack of rationale and reasoning for canceling the program, and further, that the reasons for cancellation appeared to be ill-advised and biased. This does not mean that the government cannot come back and present cogent valid reasons for terminating the program.
What we need to look for?
We need to see what the USCIS, which handles the DACA application process and issuance of employment authorization cards, will do in light of the Supreme Court decision. Obviously, the USCIS will take its orders from the Department of Homeland Security, which in turn takes its plays out of the playbook issued by the White House. So, we will see how the White House reacts to the Supreme Court’s decision which also requires the government to start accepting new DACA applications and renewing existing applications which will be expiring soon.
The administration can choose to go slow on any kind of renewal of DACA or acceptance of new applications under the ruse of gearing up new activity following the coronavirus pandemic, or having to institute new procedures, or any other number of reasons all designed to delay any kind of re-implementation of DACA. The Supreme Court has not provided a strict timeframe for the government to take action on this matter. The only mandate is that the government needs to reevaluate its reasons for terminating DACA and present those new reasons in order to determine whether they are valid or not.
To conclude, what does this mean for DACA recipients or people who have missed applying for DACA?
What this means is that these individuals need to be vigilant, and check both reliable new sources as well as the USCIS website regularly for updates on how the USCIS is going to treat DACA recipients going forward. If the USCIS decides it will start re-accepting DACA applications and related employment card applications, it will say so on its website. Individuals who are eligible should immediately file their applications so they receive their employment cards sooner rather than later. Individuals who were not eligible for DACA may now become eligible, and should therefore also file their applications promptly. Individuals whose employment cards and DACA protections were expiring, and who had no way of renewing those requests may now be eligible once again to file for an extension. The final class is a subset of the third class above – individuals who previously had DACA, and whose DACA expired, but never applied for an extension because they were prevented from doing so by DHS regulations – those individuals may also be eligible to file for their DACA status once again, thereby coming out of the shadows and enjoying all the benefits that were awarded to them prior to the expiration of their DACA status.
In conclusion therefore, this is an issue that bears careful watching and will probably be revisited in the near future.
Stay tuned on this matter for additional helpful information and advice from the Law Office of Farhad Sethna!
© Farhad Sethna, Attorney, 2020
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.