Carlos Batara – Immigration Lawyer header image

Dreamers Never Say Die: The Fate Of DACA And The Supreme Court

– Posted in: DREAM Act & DACA

As you’re likely aware, the future of the Deferred Action for Childhood Arrival program has been the top immigration news story this week.

Commonly known as DACA, the fear is that over 700,000 immigrant youth will face deportation if the Supreme Court rules in favor of the Trump Administration.

I disagree.

Win, lose, or draw, the Supreme Court decision will not be the final word.

Allow me to explain.

As you likely know, DACA is a program started during the Obama era which grants immigrant youth temporary protection from deportation and the right to legally work.

On September 5, 2017, claiming DACA was akin to amnesty, President Trump ordered the end of the program. A six-month phase out period was granted to allow an orderly closure.

Various law suits followed, leading to a hearing this week before the Supreme Court.

The case centers on two issues:

First, does the Supreme Court have the authority to decide DACA’s fate?

DACA is a discretionary program created by President Obama, not Congress.

Being a discretionary program, the government asserts, DACA’s fate is beyond the reach of the Supreme Court. Hence, under this view, the Court lacks jurisdiction to decide whether the Administration’s termination was carried out properly or not.

If the Court agrees, then the decision to rescind DACA would likely go into effect.

Second, if the Supreme Court can decide the case, what will happen?

On the one hand, the Supreme Court could decide the Administration’s rescission was done unlawfully. Those already granted DACA status could continue to file renewals, and those who qualify now could file new applications.

On the other, the Supreme Court might hold that the termination of DACA was lawful. If this happens, the Administration will be allowed to shut the program down.

Nearly all news reports, written by journalists who attended the hearing, noted the Justices were leaning toward the third option.

In the view of many pundits, this outcome means DACA is dead.

They overlook an important factor.

The fighting will continue.

A Two-Prong Approach To Green Card Success For Dreamers

As I stated immediately the Trump Administration announced its DACA termination plans, in Death Of DACA: Rebirth Of The DREAM Act And Immigration Reform, the battle over a green card pathway for immigrant youth will be carried out at immigration court on a one-by-one basis as lawyers fight for DACA youth and in Congress where favorable legislation will be eventually passed.

The Micro Level Fight: Immigration Court Cases

DACA termination does not mean automatic deportations. Due process remains the law of the land.

If ICE apprehends a DACA recipient, that individual has the right to be heard at immigration court.

Cancellation of removal is one possible course of action.

Since DACA folks had to be in the U.S. continuously since June 15, 2007, they now have the ten years to qualify for cancellation of removal. They also needed to pass a good moral character background check to qualify for DACA. If they have a qualifying relative, they have a chance to win a grant of legal residency at immigration court.

Right now, with immigration court backlogged close to 1,000,000 cases, another 700,00 DACA cases would almost double the immigration court’s docket.

And cancellation of removal is only one possible option for DACA recipents.

The Macro Level Fight: Congress

There’s a bigger reason why I don’t think massive deportations will occur after an adverse Supreme Court ruling.

The political battles in Congress will continue. In fact, the pressure to pass legislation will intensify. Compromise proposals will emerge and be floated.

Eventually, a solution will take place in the political arena.

This time, I believe, those who support immigrants will stand firm and finally pass the real deal, the DREAM Act, which enables immigrant youth to earn a green card – not simply another watered-down version of its cousin, DACA.

So will the Supreme Court decision determine the fate of DACA?


But not in the way intended by the Trump Administration.

Rather, the legal death of DACA will transform into a political revival of the fight for the DREAM Act.

By Carlos Batara, Immigration Law, Policy, And Politics