Re: Supreme Court Decision on DACA

To read previous blog on the oral arguments on the landmark DACA case see this blog post 

To read about the Home is Here March for DACA and TPS which took place in October - November 2019 see this blog post

Afterword on the DACA Decision

Decided on June 18, 2020, the Supreme Court of the United States returned an apparent siding with the respondents Regents (proponents for DACA) in Department of Homeland Security v. Regents of University of California (2020). The Court's decision was a split ruling of 5-4. The majority and concurring's verdict(s) found the errored "reason" for the rescission memorandum rescinding the Obama administration executive agency's Deferred Action for Childhood Arrivals (DACA) program was "capricious and arbitrary." However, the court did not find animus as argued by respondents that the rescission violated the 5th Amendment - this was not held. In conclusion, the Supreme Court partially vacated and reversed lower courts' rulings and concluded the Acting Secretary Duke's rescission memorandum failed to substantiate an acceptable reason per administrative law in rescinding DACA. This prevented the deliberate termination of the Obama-era program DACA. This seemingly positive decision has one unfavorable reality: DACA as any executive agency program concerning prosecutorial discretion of arrivals under unauthorized circumstances can still be rescinded under a future executive administration's discretion. The disruption and depredations such an event can cause will be unfathomable - as evident by the Trump administration sordid attempt to rescind DACA. To prevent such a thing, the executive branch can again exercise amnesty for undocumented immigrants such as the popularly mentioned Reagan Amnesty (see "Reagan executive action"), Congress can compromise on only citizenship for the DACA population through the passage of the "Dream Act" (Dream and Promise Act of 2019), or better yet push for sweeping reconstruction of the immigration system with the visionary Citizenship for All system which will be a deliberate pathway for the 11 million undocumented immigrants, families, and households living in the US. 

Trump's incompetency, but also what does this entail?

The decision ruled in favor of respondents due to the Trump administration's own gross incompetency to substantiate an acceptable reason for rescinding DACA. If the Trump administration did not undergird itself in its erroneous reason to rescind DACA, the court's outcome might have come out in a split decision with a conservative majority affirming the rescission memorandum. DACA is constitutional and that has been held and affirmed from previous lower court rulings. That wasn't the question the Supreme Court's was addressing neither the verdict. The verdict was Trump administration's reason to rescind DACA was erroneous and therefore "capricious and arbitrary." Inverse this logic and it means DACA is rescindable but only under lawful administrative procedure and discretion. That said this decision can be interpreted as a punt to Congress in a tacit act of separation of powers. But, additionally Congress has the power in resolving the discord of immigration policy in the US. This has always been understood by legal and immigration experts. Immigration advocacy networks continue pressuring Congress to pass comprehensive reform legislative items as well as Citizenship for All immigration legislation.

Acting Secretary Wolf's memo causing disruptive interim policy changes despite the Court's decision

The DACA case was the heinous machination of a xenophobic administration. Trump's willful act to jeopardize the lives of close to 1 million with deferred status was wrong on so many levels. This malice is flagrantly obvious even after the Court's decision. The administration refused accepting initial DACA applications causing public outcry and grievance - reported by NPR and other major outlets. The intransigent I-821D, Considerations of Deferred Action for Childhood Arrivals (2020) guideline is damning. Acting Secretary Wolf's guidance for June memo is "to effect certain immediate changes to limit the scope of the DACA policy pending a full and careful reconsideration of the DACA policy." When interim changes will be pended is uncertain, but it is sheer intransigence. The guidance's interim changes restrict deferred action, narrow application renewal, limit Employment Authorization, and reject requests for advanced parole (Form I-131) with only slight exceptions all in the adjudication process of DACA applications. Unthinkable is limiting deferred status to only 1 year; not 2 years as was long established in DACA prosecutorial discretion. The last part is jarring as extraordinary privileges being tested and exercised through INA Section 212(d)(5) constrains and hinders the applicant's requested warranted parole depending on totality of circumstances that are now being unfairly scrutinized in the new advanced parole guideline. It states, "Therefore, in most instances, traveling abroad for educational purposes, employment related purposes, or to visit family members living abroad will not warrant advance parole under Secretary Wolf's interim policy regarding the discretionary exercise of parole for urgent humanitarian reasons or significant public benefit... The burden shall be on the alien to establish eligibility for parole pursuant to INA section 212(d)(5)." The exceptionality and case-by-case discretionary element in this interim change of advanced parole for international travel is an encumbrance. Immigration attorneys note this unfairly disposes the requester of two things: 1) still being barred reentry after the fact of the request of travel authorization approved, and 2) the request for extraordinary privilege rejected outright despite meeting statutory examples (see Sapochnick Law Firm's Visa Lawyer Blog). There are negative repercussions one study found from this interim change that disproportionately impacts DACA-recipients. Specifically the one year limit on work authorization. Such a memo is the latest oppressive power structure imposed by the Trump administration. These guidelines rolled out in the memo after the Court's decision to renew DACA applications without hesitation is certainly furtherance of Trump and administration's outright hostility to the DACA-mented population and immigrants as a whole.