DACA is not a direct path to citizenship
The DACA Memorandum went into effect in 2012 after decades of Congress being unable to pass the DREAM Act, which stands for Development, Relief, and Education for Alien Minors. This DREAM Act was a bipartisan law that would supposedly allow people who came to the US as children to gain legal status.
Unlike the DREAM Act, DACA does not give legal status to the people who have it. You can neither get a green card nor become a U.S. citizen if you are a DACA recipient, without some other application. What DACA does is to prevent deportation and provide you with work authorization (and access to certain federal benefits).
Just like DACA, another executive order called DAPA (Deferred Action for Parents of Americans) provides a deferred status to parents of U.S. Citizens or lawful permanent residents. This means that deportation is deferred for parents meeting certain criteria and they can be authorized to work. It was announced by President Obama in November 2014 but faced lawsuits from several states in February 2015 leading to it being stopped.
DACA termination faced court battles
In June 2017 the Trump administration announced they were rescinding the DAPA order. At the same time, the Acting Director of Homeland Security (DHS), Elaine C. Duke decided to terminate DACA based on advice from then-Attorney General, Jeff Sessions. Duke announced that the DHS would not accept any new DACA applicants. However, those currently with DACA could apply for a 2-year renewal.
Several groups sued DHS regarding the move to end DACA, stating that it violated the APA (Administrative Procedures Act) because rescission was arbitrary, capricious, and infringed on the Equal Protection Clause of the 5th Amendment.
In response, DHS argued they weren’t bound by the APA and that under the INA (Immigration and Nationality Act) courts had no jurisdiction to tell them what to do about DACA.
Courts: DACA Elimination is wrong
All courts agreed to go against the DHS petition although they had different reasons for what DHS did wrong. But in effect, the decision led to an injunction that stopped President Trump from completely eliminating DACA.
The battle did not end there. The DC District Court gave DHS another chance to issue a new memorandum as to why DACA should be rescinded. However, the new DHS Secretary Nielsen did not offer any new arguments and even included new justifications for the previous decision regarding rescission.
Given DHS’ latest response, the D.C. District Court refused to allow DACA to be ended as no new legal arguments had been provided by DHS. This is the second time the move to eliminate DACA was not approved.
The Trump Administration then appealed this decision to the Second, Ninth, and DC Courts, as well as asking the Supreme Court to grant certiorari (hear the case). When the 9th Circuit affirmed the lower court decision, the Supreme Court granted certiorari.
The basis for the Supreme Court decision
Before issuing its decision, the SC looked into whether the APA claims are reviewable, and if so, whether the rescission was arbitrary and capricious in violation of the APA, and that the plaintiffs have stated an equal protection claim.
According to the SC, the DACA rescission decision is reviewable under the APA, contrary to the claim earlier made by DHS. This is because DACA recipients have access to medicare and social security which belong to interests that the “courts are often called upon to protect.” Thus, the DHS’ decision to end DACA was declared arbitrary and capricious under the APA.
Moreover, the two jurisdictional provisions under the INA do not apply, contrary to the Government’s argument that the court had no jurisdiction to decide on DACA.
DHS can end DACA
Legally speaking, DHS has the power to end DACA. Four of the majority Justices agreed that the rescission of DACA did not violate the Equal Protection Clause of the 5th Amendment of the constitution. If only the DHS secretary had focused on ending benefits but allowing for deferred action, the Court would have allowed DACA to end. But since the DHS kept focusing on ending both, they went beyond what was allowed without “reasoned analysis.” This means that although the courts agree that DHS can rescind DACA, the main dispute during the recent court battles centered on the procedure DHS followed to attain rescission.
The DHS also failed to address whether there was a “legitimate reliance” on the DACA Memorandum in Secretary Duke’s decision. In other words, DREAMers relied on the government’s promise and now they shouldn’t be punished for it.
DACA eligible applicants should apply now
Although at the moment, DACA continues, the SC memorandum has two main implications moving forward. First, should DHS follow the steps set out by the Supreme Court, they can successfully end DACA. Second, the issue is back at the lower courts, so there might be a delay in action while the government re-works its strategy to end DACA.
If you are eligible, this means that your window for application is closing. If you passed the criteria for DACA, you should apply as soon as possible. Those who believe they fall under DACA but have not checked their eligibility can get in touch with one of our immigration attorneys to give you a case evaluation.
You should consider applying for DACA even if it does not grant legal status since it keeps you from being in the U.S. unlawfully. Unlawful presence can actually hinder your chances of getting a green card.
In addition, DACA allows you to apply for Advance Parole. Advance Parole means that you get permission before you leave the U.S. to certify that you can re-enter. If you leave and come back, your re-entry is considered a legal entry. So, if you have a spouse who is a US Citizen or a child over 21 who is, you could adjust your status in the U.S. instead of having to leave while your green card application is processing.
Get Help from an Immigration Attorney
If you intend to apply for DACA, there are seven general requirements you must fulfill:
- You had to have entered the US before you were 16 years old
- You must be under 31 years old or younger on June 15, 2012
- You must have lived in the US continuously from June 15, 2007 until now
- You must have been physically inside the US on June 15, 2012
- You couldn’t have legal status on June 15, 2012
- You must be in school, have graduated from HS, be enrolled in college, have your GED or be getting your GED, and
- You can’t have committed any serious crimes or 3 or more misdemeanors.
If you meet these qualifications, we highly recommend that you contact Andres Mejer Law immigration lawyers to get help. Stop deportation and explore your other options in getting legal status in the future. Don’t wait for the administration to end DACA before making your move. Contact our law firm today for your case consultation.