Yesterday a court ordered that the Trump Administration must partially reinstitute the Deferred Action for…
Today the Supreme Court made its ruling in DHS v. University of California, addressing the legality of the Trump Administration’s decision to end DACA. No. 18-587, 591 U.S. ___ (2020). In short, the Court held that the Trump Administration acted unlawfully in how it ended DACA, which it did without following procedures under the Administrative Procedures Act.
I may update this later with some analysis of the Court’s decision. But what a lot of people want to know right now is what this decision means for their individual cases.
Can I file a new DACA application following the Court’s decision?
Although the Court ruled in favor of the DACA plaintiffs, this does not automatically mean that new applications can be accepted. There are at least two schools of thinking about this among immigration lawyers.
The “yes, file” school of thought. The DACA litigation was rather procedural complex from a legal standpoint. Basically, after the Trump Administration ended DACA, a group of plaintiffs sued to challenge that decision. Lower-level courts held that the plaintiffs were likely to succeed and entered “injunctions” requiring USCIS to put DACA back into place. Today’s decision basically says that those lower courts got it right, and the plaintiffs are likely to succeed.
This means that DACA should go back into effect, just as it was before Trump ended it. That status quo, of course, was that new applications were being accepted. So on this school of thoughts, new DACA applications can be filed on the current Form I-765, following the guidelines that applied back when DACA was in effect before.
The “don’t file now” school of thought. Other immigration lawyers think that new applications should not be filed until USCIS updates its rules following this decision. USCIS generally gets to set the rules for when and how applications are made. The conservative approach is to wait for USCIS to update it’s guidelines for how DACA applications are filed, as it does any time the courts make a ruling that effects a particular class of immigration applications.
I recommend filing. My current thinking on this is that if you meet the requirements to file DACA you should do so. The Supreme Court’s ruling was that the injunctions are back in effect, which means DACA is back in effect. If USCIS rejects applications or refuses to process them that is illegal and could be challenged. There is a risk you would lose your filing fee if USCIS decides to adopt a policy of stone-walling new DACA applications, but that is small compared to the potential benefit conferred by DACA.
A special note about risk of deportation proceedings. Back when DACA was first implemented, there was a huge amount of concern that applications could later face immigration enforcement action. Basically, you had an undocumented person essentially handing their address and information to the immigration agencies. I shared the view with many of my colleagues that it would take a politically insane situation for the government to ever try and deport DACA youth. Well, if our present situation is anything, “insane” doesn’t begin to cover it. It would be naive to think that there is zero chance that someone like Trump would try to deport either DACA applicants or those who’s applications are denied. This is ultimately a risk judgment that each applicant has to make for herself. But I no longer think that the risk is close to zero.
Is USCIS still going to try to end DACA?
Yes. USCIS has made it very clear that it has nothing but contempt for the Supreme Court’s decision (see this statement). The only good news in this regard is that they will have to follow the rules of the Administrative Procedure Act (APA), which means that this won’t happen immediately. But if you are eligible to apply you should do so right away.