What is Deferred Action for Childhood Arrivals?

Deferred Action for Childhood Arrivals (“DACA”) is a program that permits undocumented people to apply for work authorization and protection from deportation in two-year increments. The Obama administration’s Department of Homeland Security (“DHS”) Secretary Janet Napolitano first announced the decision to exercise discretion over childhood arrivals’ cases in 2012 and stressed the need for a permanent pathway to lawful status for the population commonly referred to as “Dreamers”.

To be considered for this temporary protection, applicants had to prove that they entered the U.S. before their 16th birthday, that they had resided in the U.S. since June 2007, and that they were either enrolled in/ graduated from school or had military service. Additionally, DHS requires each applicant to submit to a background check and automatically disqualifies anyone who has sustained even a single “significant misdemeanor” (e.g. DUI).

Why does DACA matter?

Aside from the direct benefits of work authorization and protection from immigration enforcement, approximately 800,000 DACA beneficiaries have unlocked opportunities previously unavailable to them. Studies into DACA’s impact consistently find that recipients experience improvements in access to education, employment, healthcare, housing, and in their perceptions of safety. These improvements extend to their families, employers, and surrounding communities.

According to opponents of DACA, the program sends the wrong message to people around the world seeking to enter the country. In other words, the program encourages illegal immigration by giving people who entered “illegally” a path to citizenship.

Termination of DACA

Leading up to the 2016 presidential elections, then-candidate Donald Trump campaigned on anti-immigrant rhetoric. Trump repeatedly promised to rescind DACA protections. On September 5, 2017, Trump appointee Attorney General Jeff Sessions announced the administration was rescinding DACA, characterizing it as “executive amnesty” and a “violation of law” and directing Congress to address the benefit through legislation within six months. Congress did not act, and Trump followed the announcement with a tweet that he would “revisit the issue” if Congress failed to “legalize DACA”. DHS announced that it would not consider any DACA applications filed after October 5, 2017, leaving hundreds of thousands of people’s futures uncertain.

The legal challenges

Three lawsuits followed the rescission of the DACA program in California, the District of Columbia, and New York. These cases are now consolidated before the Supreme Court as Department of Homeland Security v. Regents of the University of California. All three cases argued that the sudden rescission of DACA violated the Administrative Procedure Act, as well as the rights of DACA recipients. All three cases resulting in holdings restoring DACA for those who had already applied.

The Supreme Court will hear oral arguments on two core issues: (1) whether the administration’s decision to terminate DACA is judicially reviewable; and (2) whether the decision to terminate DACA was lawful.

The arguments

Department of Homeland Security’s position is that the creation of DACA was purely a decision of “nonenforcement” of existing law. That is, DHS contends that existing law finds that persons in the United States without authorization are otherwise deportable and ineligible for work authorization. DHS’s decision to rescind its nonenforcement policy, then, is an enforcement decision of the sort traditionally “committed to an agency’s absolute discretion.” As such, no explanation is owed to the public.

The challengers argue that the termination of DACA is reviewable because DHS claimed it was compelled to terminate DACA as a matter of law. In claiming that DHS’s decision was required as a matter of law, it shifted responsibility to the courts to decide what the law is. Additionally, the Administrative Procedure Act requires a certain level of transparency so that decisions can be reviewed for abuse of discretion. The Trump administration detailed conflicting reasons, some of which were disclosed after terminating DACA or not disclosed at all. After all, how could Trump tweet he would “revisit” DACA if Congress failed to enshrine protections in a permanent law if the administration truly believed DACA was unlawful?

The challengers also argue that the high stakes for the individuals impacted by the DACA program, decisions to terminate the program should be reviewed to ensure the agency action is not “arbitrary and capricious”. In other words, the reasoning must pass a court’s review to ensure it was not random and impulsive.

The Justices will hear arguments on November 12, 2019.

Correction: A previous version of this article misstated the description of the DACA program in the introduction. Subscript Law editors are responsible for the error and not Contributor Kristina McKibben.