DHS v. Regents of the University of California

On November 12, 2019, the Supreme Court of the United States heard oral arguments in the case of Department of Homeland Security v. Regents of the University of California, consolidated with Trump v. NAACP and McAleenan v. Vidal, to decide whether the Department of Homeland Security (DHS) can rescind the Deferred Action for Childhood Arrivals policy (DACA).  The questions were: 

(1) Is DHS’ decision to wind down DACA is judicially reviewable; and (2) Is DHS’ decision to wind down DACA lawful?

What is DACA? 

DACA enabled people who came to the United States before the age of 16 to apply for “deferred action,” a form of prosecutorial discretion, and a work permit. The program has protected over 700,000 people in the United States. On September 5, 2017, then Attorney General Sessions announced that DACA would be rescinded. Several litigants  challenged the rescission in the courts and the cases were consolidated for Supreme Court review.

What did the Supreme Court Decide? 

On June 18, 2020, the Supreme Court of the United States held 5-4 that the decision by the DHS to terminate DACA was:

1. Reviewable in court; and 
2. “Arbitrary and capricious” under the Administrative Procedure Act (APA). 

The Court reasoned that the “agency must defend its actions based on the reasons it gave when it acted”.  Consequently, DHS failed to consider “reliance” interests such as a broader renewal period for DACA recipients or a more accommodating termination date. The Court said that while DHS was not required to consider all policy alternatives, “it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” 

Put another way:  You have a lot of power, but don’t be a jerk about it!

As a result of the decision, the Court remanded all three (consolidated) cases for further proceedings. As a separate matter, the Court rejected a claim under the Equal Protection Clause of the U.S. Constitution. 

WHAT YOU NEED TO KNOW ABOUT THE STATUS OF DACA 

Does Today’s Decision Mean the DACA Can Never End? 

No. The Court found that DHS failed to provide a reasonable explanation for ending DACA. President Trump announced that he is working on a new explanation for ending DACA.

Did the Supreme Court Make a Decision About Whether DACA is Lawful? 

No. DACA remains in effect because the effort to terminate it failed.

Can I submit an application for DACA for the FIRST time? 

YES! 

The Supreme Court’s decision means that DACA should be fully reinstated, allowing for first time DACA requests. With that said, DHS will need to reopen the DACA policy for new requests consistent with today’s decision. But, this may not happen immediately. 

I have DACA. Can I renew my DACA? 

YES! 

If you already have  DACA, you should be able to submit an application to renew DACA. 

I have DACA. Can I apply for advance parole international travel? 

YES!

Advance parole should be reinstated. DHS will need to reopen the DACA policy for advance parole requests consistent with today’s decision. But, this may not happen immediately. 

This information is for general purposes only and may not apply to your particular situation.  Consult privately with an attorney.