As we noted earlier, among the eight immigration cases pending at the Supreme Court is the question of whether the current administration’s attempt to end DACA was legally proper. The Supreme Court heard oral argument on November 12, 2019.
The case focuses on two questions: (1) Are the courts even allowed to review the government’s decision to end DACA? (2) Did the government violate the law in the way that it went about ending DACA?
Are courts able to review the decision to end DACA?
The administration’s first argument is that the courts may not review the decision to end DACA, because that decision was within the federal government’s discretion, and so may not be second-guessed.
One weakness of the government’s argument is that the original justification that the administration provided for ending DACA is that the program was illegal, and so the administration had no choice but to end the illegal program. Justice Ginsburg pointed out the problem: on the one hand, the government says that it had the discretion to end the program, while on the other hand, the government says it had no discretion because the program was illegal.
Did the government attempt to end DACA in a lawful way?
Both sides agree that the current administration could end DACA if it chose to do so in a legally proper way – by providing sufficient reasoning behind the decision.
The government’s original justification for ending DACA was a brief memo that stated that the program was illegal, and so it must be ended. Those supporting the DACA program argue that the government’s original reasons were not sufficient to justify the decision to end the program.
The government later provided an additional memo that attempted to more fully address all of the factors involved, including the reliance of about 700,000 persons who have DACA. One question that the justices must sort out is, if the DACA program is legal (despite the current administration’s argument that it isn’t), then is the administration’s justification for ending DACA sufficient?
We expect the Supreme Court to issue a decision any time between now and the end of June 2020.
The U.S. Supreme Court has eight pending immigration cases, and we are likely to see decisions on most or all of them by June 2020, when the Supreme Court ends its current session. Here is a run-down of the eight cases:
- Perhaps the most anticipated case involves the future of DACA. The Supreme Court will decide whether the Trump Administration’s decision to end DACA was legal. Based on the oral argument, held in November 2019, the Court is likely to be sharply divided on the question. If the Supreme Court decides that President Trump legally ended DACA, the next question will be exactly how the Administration will end the program. Because the future of DACA is very uncertain at this time, we suggest that all persons who currently have DACA to consider applying to renew DACA as soon as possible, before the Supreme Court issues a decision. Our reason for making this suggestion is that, if the Court rules that President Trump legally ended DACA, then there will no longer be any opportunity to renew DACA.
- In Kansas v. Garcia, the Court will decide whether states may prosecute undocumented persons who use stolen data such as Social Security numbers to obtain work, or whether such prosecutions are only permitted by federal officials. The federal I-9 form, which job applicants must complete in order to obtain employment, states that the information put on the form may only be used for federal law purposes.
- Another case before the Supreme Court focuses on whether certain noncitizens may appeal certain decisions to federal courts of appeals. Congress has enacted a law that specifically allows federal courts to review “questions of law.” But federal appeals courts generally do not have the power to review “questions of fact.” In cases before the Supreme Court this term, two noncitizens filed late motions to reopen their deportation cases. The Board of Immigration Appeals denied their motions. The question that the Supreme Court must answer is whether federal appeals courts may review the decisions of the Board of Immigration Appeals.
- In Nasrallah v. Barr, the Supreme Court will decide whether or not federal courts have authority to review certain decisions. As we just noted, generally federal appeals courts do not have the power to review “questions of fact.” But the United States has agreed to follow a document called the Convention Against Torture, and the federal government has laws that state that federal government officials may not send any persons to any countries in which they are likely to be tortured. In this case, the Supreme Court will decide whether federal appeals courts have the authority to review factual findings that resulted in denying requests for protection under the Convention Against Torture.
- The Constitution contains a right to file a habeas corpus petition, which is a challenge to being detained by any government authority. In DHS v. Thuraissigiam, a noncitizen entered the United States and asked for asylum. A federal immigration official concluded that he did not have a valid asylum claim, and ordered his deportation. He filed a habeas corpus petition in federal court, challenging his detention by federal officials as unlawful. Congress passed a law restricting the power of federal courts to hear habeas corpus cases in certain immigration matters, such as this one. The Supreme Court will decide whether Congress’s law is valid, or whether it violates the Constitution’s right to file a habeas corpus petition.
- Congress passed a law making it a crime to encourage illegal immigration for financial gain. A woman in California was convicted of helping noncitizens apply for immigration benefits that they were not entitled to receive. A federal appeals court concluded that Congress’s law violates the First Amendment because it applies too broadly, potentially making it a crime for a lawyer to advise a client to remain in the United States while her case is pending in Immigration Court. The Supreme Court will decide whether Congress’s law violates the Constitution.
- When a noncitizen applies for certain immigration benefits in Immigration Court, there is a question of whether certain criminal convictions disqualify the person from seeking the benefit. Some minor offenses, such as driving without a license, generally do not disqualify a person, while more serious offenses do. Most criminal convictions occur in state courts, while lists of disqualifying crimes are based on federal law, listing federal offenses. Sometimes, it’s unclear whether a conviction under a state law fits within the federal law definition. In this case, the Supreme Court will decide who bears the burden of this question: Is it the noncitizen’s responsibility to show that the state conviction is not a disqualifying federal crime? Or is it the federal government’s job to show that the state conviction is a disqualifying federal crime?
- Finally, the Supreme Court will decide a case that focuses on a legal distinction between being “deportable” and being “inadmissible.” A permanent resident (green-card holder) in the United States was convicted of a crime in the United States. In Immigration Court, he was in danger of losing his permanent resident status as a result of the conviction, and so he applied for a certain benefit that, if approved, would allow him to keep his green-card status. Immigration law indicates that his criminal conviction makes him “inadmissible,” and so he’s not eligible to apply for the benefit. He argues, on the other hand, that he’s not asking to be admitted to the United States – he’s already been admitted – and so he should be able to request the benefit. The Supreme Court will decide whether a permanent resident can be considered “inadmissible” when he is not seeking admission to the United States.
Decisions are expected by the end of June 2020.
It is no longer possible to apply for DACA if you have not already been granted DACA. You can, however, apply to renew your DACA status if you have been granted DACA in the past. Even if you currently have DACA, and even if your current DACA status is valid until late 2020, you should consider applying to renew DACA now.
The Trump Administration has been trying to end the DACA program. DACA, or Deferred Action for Childhood Arrivals, was begun by President Obama in 2012 as a way to provide protection against removal, and employment authorization, for certain people who entered the United States before age 16 and who either have a high school degree or are studying for a high school or GED degree.
The U.S. Supreme Court has agreed to hear arguments in case that will decide whether the DACA program survives, or whether it is ended completely. The case is scheduled to be argued at the Supreme Court on November 12, 2019. After the argument, the Supreme Court will consider the case, and eventually will issue a decision. We don’t know when the Supreme Court will issue the decision, but we are almost certain that the decision will be announced between December 2019 and June 2020.
We don’t know how the Supreme Court will rule on the case. We believe, however, that there is a significant possibility that the Supreme Court’s decision will end the DACA program.
If the Supreme Court’s decision ends the DACA program, the next question is: What happens to the people who currently have DACA? The answer is, We don’t know. But we hope that the U.S. government will allow those who currently have DACA to keep their DACA status until the expiration of their employment authorization cards.
So, what is the point of applying now to renew DACA?
If you apply now to renew DACA, before the Supreme Court issues a decision that could end the DACA program, then your application might be approved, and we hope that you would at least be able to have your renewed DACA status through the expiration of your new employment authorization card.
In other words, applying now to renew DACA might give you the opportunity to have DACA status for a bit more time.
Again, we don’t know what the Supreme Court’s decision will be, and we don’t know how the Supreme Court’s decision will affect persons who currently have DACA. But we think it’s a good idea for you to consider applying to renew DACA now, while you still can.
U.S immigration officials are now accepting applications for Deferred Action for Childhood Arrivals (DACA), the new DREAM initiative of the Obama Administration. For more information, please visit our Deferred Action for Childhood Arrivals (DACA) – DREAM page.
On June 15, 2012, the U.S. Department of Homeland Security announced that it would grant “Deferred Action” for certain people in the United States.
If U.S. Government officials are not in the process of trying to deport you, and if U.S. Government officials have never ordered your deportation in the past, then at this time you are NOT yet eligible to make any applications for anything related to this announcement.
Don’t be fooled by people offering you a green card, work authorization, or any other immigration benefit due to the recent announcement by the U.S. Government!
If the U.S. Government is not trying to deport you at this time, then you will need to wait until government officials create an application process, which will probably be in the month of August 2012.
If U.S. Government officials are in the process of trying to deport you at this time, then you should contact a knowledgeable and ethical immigration lawyer to determine if you might be eligible for the new procedures.
You might be eligible for “Deferred Action” if you meet all of the following:
- You entered the United States before you turned age 16
- You are now under age 31
- You have lived in the United States for at least 5 years as of June 15, 2012
- You are enrolled in school now, OR you graduated from high school, OR you have a GED, OR you have been honorably discharged from the Armed Forces
- You have not been convicted of a felony, you have not been convicted of a “significant” misdemeanor, and you have not been convicted of more than 3 misdemeanors
- You do not pose a threat to national security of public safety
You should speak with a knowledgeable and ethical immigration lawyer about your own particular immigration matter.
From the U.S. Department of Homeland Security:
WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.
“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”
DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.
Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
- Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Are not above the age of thirty.
Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), or DHS’s website (at www.dhs.gov). Beginning Monday, individuals can also call USCIS’ hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the forthcoming process.
For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.
Emily Rosenbaum has written a thoughtful piece about the DREAM Act at the Columbia University Teachers College website.
Ms. Rosenbaum carefully reviews arguments for and against the legislation, taking into consideration a variety of issues, including, perhaps most importantly, the compelling need of undocumented immigrants to be adequately educated so that they may contribute to our nation.
The New York Times has published a compelling profile of Isabel Castillo, a 26-year-old woman who was brought to the United States illegally when she was 6 years old.
Ms. Castillo graduated from college with a perfect 4.0 grade point average. Despite her talents, achievements, and her 20 years in the United States, Ms. Castillo has no legal status in the United States.
The DREAM Act, a bill that remains pending in Congress, would have given legal status and a chance for citizenship to Ms. Castillo and others like her – people who were brought to the United States illegally at a young age who then attend college or serve in the U.S. military.
You can find the article here.
AFL-CIO President Richard Trumka and undocumented DREAM-Act eligible youth Gaby Pacheco present compelling arguments for the DREAM Act, a bill in Congress that, if passed, would allow certain persons who were brought to the United States unlawfully at a young age to get on a path to legalization if they attend college or serve in the U.S. military.
Trumka and Pacheco outline some of the most important reasons why the DREAM Act should be passed. Please read their opinion piece here.