Two weeks ago, a federal appeals court ruled that the Donald J. Trump administration’s September 2017 rescission of the Deferred Action for Childhood Arrivals (DACA) program – which provides work permits and temporary protection from deportation to certain undocumented immigrants who came to the U.S. as children – was unlawful.
The court’s ruling is in line with decisions previously made by federal courts in California, New York, and Washington, D.C. These courts ruled that the administration had not adequately explained why DACA was terminated and the termination was therefore “arbitrary and capricious” in violation of the Administrative Procedure Act (APA) which governs how federal agencies may make and enforce regulations.
The most recent federal court decision will not have an immediate impact on the DACA program because federal courts already ordered the government to continue accepting applications for DACA renewals nationwide. Under the previous federal court decisions, applications for DACA renewals are to be accepted, but no new applications (from those who never had DACA before) will be.
So far, the U.S. Supreme Court has declined to hear the Trump administration’s appeals to the federal cases that found the rescission of DACA was unlawful. The Trump administration filed new petition for an expedited appeal with the Supreme Court after the most recent federal appeals court decision, which the court declined to hear this week.
Legal Challenges to DACA
At the same time, legal challenges to DACA are coming from the other side: states that believe the program itself, not how it was terminated, was unlawful.
In May last year, Texas and six other states brought a lawsuit to the federal court in Texas arguing that the creation of the program by President Barack Obama violated the APA and overstepped his constitutional authority. In this case, Texas v. Nielsen, the plaintiff states asked Texas’ federal court to issue an injunction to halt the DACA program while the case was pending. The judge denied this request but indicated that the plaintiffs were likely to ultimately succeed in showing that the establishment of DACA was unlawful. While the decision allowed DACA to continue for the time being, it also signaled that federal courts could end up issuing conflicting decisions over the legality of DACA soon.
Because of the pending legal clash between courts over DACA, a legislative fix is desperately needed now more than ever. Over 800,000 young people benefit from the DACA program, and a vast majority of Americans support it. At the same time, the DACA program doesn’t provide any long-term solution to the problem it seeks to address. Those with DACA have no way to secure permanent residency or citizenship and are still vulnerable to deportation from the United States.
American Dream and Promise Act of 2019
Just this week, the U.S. House of Representatives passed the American Dream and Promise Act of 2019, which would provide needed permanent protection for those with DACA, also referred to as “Dreamers.” Under the framework, work permits and a pathway to a green card (and eventually citizenship) are established for certain undocumented immigrants who entered the U.S. as children and completed the bill’s educational, military, or employment requirements.
Not only is a Dream Act sound policy, but it will eliminate DACA’s current legal uncertainty and the tangled web of legal opinions it has created in federal courts. Furthermore, no court decision, even from the Supreme Court, will be able to provide the needed solution to the DACA issue – a pathway to citizenship for Dreamers.
Until a Dream Act is passed, hundreds of thousands of hard-working young people with DACA, who know no other country than the United States, will live each day wondering if they will be able to stay here the next.