As you’re likely aware, the future of the Deferred Action for Childhood Arrival program has been one of the top immigration news stories over the past few weeks.
Commonly known as DACA, the fear was that over 700,000 immigrant youth would face deportation if the Supreme Court rules in favor of the Trump Administration.
I disagreed with that assumption.
Win, lose, or draw, I did not think, as I wrote in various articles, the Supreme Court decision would be the final word. I still hold to that perspective.
To the surprise of many, on June 18, 2020, the Justices ruled in favor of the DACA litigants.
Following this decision, the government refused to allow new DACA applicants to file for benefits. The case returned to court.
On July 17, 2020, in Casa De Maryland v. U.S. Department of Homeland Security, the government was ordered to restore the Deferred Action for Childhood Arrivals (DACA) program to its pre-September 2017 status. This means first-time applicants can now apply for Deferred Action and an employment authorization.
Yet, the reality is that the June 18, 2020 and July 17, 2020 rulings are not the final word.
And that’s the rub.
Allow me to explain.
Before the exaggerated hype from pundits begins, before the misleading optimism of community advocates starts, and slick sales pitches from paralegals and attorneys commence.
The Supreme Court Battle Over DACA
DACA is a program started during the Obama era, granting 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 the hearing before the Supreme Court.
The case centered on two concerns:
First, the government asked, does the Supreme Court have authority to decide DACA’s fate?
DACA is a discretionary program created by President Obama, not Congress.
Being a discretionary program, the government asserted, DACA’s fate is beyond the reach of the Supreme Court. Under this view, the Court lacks jurisdiction to decide whether the Administration’s termination was carried out properly or not.
If the Court had agreed, the decision to rescind DACA would likely have went into effect.
Second, advocates worried, even if the Supreme Court can decide the case, what will happen?
On the one hand, if the Supreme Court had held the termination of DACA was lawful, the Administration would have been allowed to shut the program down.
On the other, since the Court decided the rescission was done unlawfully, the decision allows those already granted DACA status to continue to file renewals, and those who qualify now could file new applications.
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, such an outcome would mean DACA is dead.
They overlooked an important factor.
Regardless of outcome, the fighting would continue.
Here’s my viewpoint before the Supreme Court decision, little of which has changed.
A Two-Prong Approach To Green Card Success For Dreamers
As I stated immediately after 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.
It’s a two-pronged battle.
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 did not think massive deportations would occur after an adverse Supreme Court ruling – or will occur in the future even if the Administration attempts to end DACA in a more lawful manner.
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 did the Supreme Court decision determine the fate of DACA?
But not in the way intended by the Trump Administration.
Rather, as should be clear now, the legal battle over the legality of DACA will transform into a political revival of the fight for the DREAM Act.
The question is when will Congress have the political fortitude to resolve the program’s viability once and for all.
By Carlos Batara, Immigration Law, Policy, And Politics