Supreme Court Leaves DACA in Place

High court declines to circumvent usual appellate procedure

Allen Smith, J.D. By Allen Smith, J.D. February 26, 2018
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​The Supreme Court declined on Feb. 26 to review a federal district court decision requiring the government to continue to process Deferred Action for Childhood Arrivals (DACA) application renewals.

The status of DACA, which grants work permits to those who arrived in the United States as children when their parents crossed borders unlawfully, has been a source of controversy, as President Donald Trump's administration called in September 2017 for the program to end as of March 5.

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]

But a district court in California ruled Jan. 9 that the Trump administration must resume enrolling renewals for DACA.

The lower court decision does not signify that the government will accept new DACA applications, only renewals, noted Andrew Greenfield, an attorney with Fragomen in Washington, D.C.

A New York district court also ruled on Feb. 13 to keep DACA in place.

Unusual Request

On Jan. 18, the Department of Justice asked the Supreme Court to hear the California district court decision without the appeals court first reviewing it, which would be "very unusual," he said.

The Supreme Court's announcement "means a reprieve for hundreds of thousands of DACA beneficiaries already in the system who will be able to remain in the United States and have work authorization at least until courts of appeal have their say," he noted. "This could take a year or more."

If appeals courts strike down the program, plaintiffs could still seek a bar on unfavorable action until the Supreme Court rules on it, which he predicted it ultimately will.

"The case will now go back to the 9th Circuit," said Rebecca Peters, director of government affairs for the Council for Global Immigration. "Even if the 9th Circuit moves quickly, the Supreme Court would not likely hear the case at the earliest until its next term begins."

A White House spokesman stated that the DACA program "is clearly unlawful. The district judge's decision to unilaterally reimpose a program that Congress had explicitly and repeatedly rejected is a usurpation of legislative authority." The spokesman added, "We look forward to having this case expeditiously heard by the appeals court and, if necessary, the Supreme Court, where we fully expect to prevail," Reuters reports.

Effect on Congress

"Should Congress pass new DACA legislation, it would likely mute the litigation," noted Mary Pivec, an attorney with Pivec & Associates in Woodbridge, Va.

The district court's decision and the Supreme Court's announcement could make DACA less of a priority for Congress, "as the March 5 deadline would no longer be perceived as a deadline for passing Dreamer-related legislation," said Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla. DACA participants sometimes are referred to as Dreamers because they were the intended beneficiaries of the DREAM Act, which would have granted them work permits, although it never passed Congress.

But Borovska added that the announcement could provide more leverage to negotiate a clean Dreamer bill without such additional provisions as funding for a border wall or provisions limiting legal family-based immigration.

The announcement "doesn't signify that the Dreamers are safe," said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. "We need the U.S. Congress to intervene to protect them, if we don't want to see DACA beneficiaries fall out of status."

DACA is not a permanent solution for Dreamers, Borovska said. It provides temporary protection from deportation, as well as work authorization, granted in two-year increments, to a narrow population of young immigrants. "It does not provide a pathway to permanent residency or citizenship," she said. "A permanent solution would have to come from Congress."

 

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