SGG celebrates the U.S. Supreme Court’s decision in Department of Homeland Security v. Regents of University of California. The Court held that DHS violated the Administrative Procedures Act when it rescinded Deferred Action for Childhood Arrivals, DACA. Since 2012, the DACA program has allowed over 700,000 previously undocumented immigrants to obtain reprieves from the threat of deportation and to apply for employment authorization in two-year increments.
In 2017, DHS abruptly rescinded the program, and offered explanations for why only months later. Like in Dep’t of Commerce v. New York decided last year, where the Department of Commerce sought to include a question in the census on citizenship, the Court said the agency came up with a reason after the fact for the action it wanted to take. This violated the rule that “An agency must defend its actions based on the reasons it gave when it acted.” DHS also failed to consider the possibility of ending just the employment authorization benefit while keeping Deferred Action, to at least keep these 700,000 people from being deported. And DHS failed to consider the fact that since 2012 DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program. The Court maintains, though, that DHS has the power to end DACA, if it follows the proper procedures.
While the decision doesn’t solve the ultimate problem of lack of lawful status for hundreds of thousands of educated young people, it gives Congress time to legislate a path to lawful status. In the meantime, we await guidance from U.S. Citizenship & Immigration Services on whether applications will be accepted from first-time DACA applicants and for advance parole (permission to travel).