DemDaily: DACA and Dreamers on The Docket

November 13, 2019 

On November 12th, the Supreme Court of the United States (SCOTUS) heard oral arguments on the fate of the Deferred Action for Childhood Arrivals (DACA) program.

One of President Barack Obama's signature immigration policies, the Deferred Action for Childhood Arrivals (DACA) program allows qualifying undocumented immigrants, who entered the country as minors, to receive a renewable two-year period of deferred action from deportation and eligibility for a work permit. 

The arguments before the Supreme Court are the culmination of a series of brutal legal and legislative battles that have entangled Congress, the Administration, and the future of approximately 800,000 children known as "Dreamers" since Trump took office.

June 15, 2012: President Barack Obama institutes DACA by Executive Order after attempts to pass the comparable 2011 Dream Act in the Republican-controlled Congress failed.

DACA is not the path to citizenship proposed under the congressional DREAM Act (Development, Relief, and Education for Alien Minors), but protects Dreamers' immigration status until Congress can pass such legislation. Lawmakers have been trying to get a DREAM Act passed since 2001.

August 31, 2016: During his presidential campaign, Donald Trump promised to "immediately terminate" DACA as a part of his 10-point immigration plan, claiming it provided amnesty to millions of "illegal" immigrants.

September 5, 2017: Attorney General Jeff Sessions announced the administration was rescinding DACA, calling it "an unconstitutional circumvention of immigration laws," and an "overreach" of executive power by Obama. The program was to be phased out over six months, ending the legal status for DACA participants as of March 5, 2018.  Sessions also noted it provided "a time period for Congress to act - should it so choose."

More than ten cases were filed challenging the Trump administration's termination of DACA.

November, 2017: Students from 9 DC public schools took over Hart Senate Office lobby to protest the end of DACA (pic: Washingtonian)


September 6, 2017: A coalition of 15 states and DC filed a federal lawsuit, New York v. Trump, in the Eastern District of New York, alleging the administration's actions violated due process and are designed "to punish and disparage people with Mexican roots," citing 78% of DACA recipients as having been born in Mexico.

September 8, 2017: California Attorney General Xavier Becerra filed a separate lawsuit, Regents of the University of California v. DHS (Department of Homeland Security). It was joined by the states of Maine, Minnesota, and Maryland.

January 9, 2018: In Regents, the US District Court in California ordered DHS, which administers DACA, to maintain the DACA program nationwide.

On the same day, Trump met with lawmakers to strike a legislative resolution to DACA, but after his comments calling dreamers "people from sh--hole countries" are reported, he backtracks on his commitment.

January 18, 2018: The US Justice Department appealed to the 9th US Circuit Court of Appeals and to the US Supreme Court to review the federal judge's order in Regents.

Dream Act Now Protest Feb 7, 2018 (pic: CAP)

January 20, 2018: The issue of DACA and the Dreamers became the empasse in the budget negotiations and, with no resolution, the government shuts down for the first time since 2013.

Democrats acquiesced to a continuing funding resolution through February 8th -- after assurances by Senate Majority Leader Mitch McConnell (R) that a vote on DACA, "with or without the President's support," would be brought to the floor before March 5th when participants would lose their legal status.

February 13, 2018: In Batalla Vidal v. Nielsen, the US District Court for the Eastern District of New York granted a preliminary injunction ordering the federal government to restore the DACA program, including accepting new applicants and renewals.

Judge Nicholas Garaufis went further to rule that DACA was neither unconstitutional nor in violation of the Administrative Procedure Act (APA) or the Immigration and Naturalization Act (INA).

February 26, 2018: The US Supreme Court declined to hear the Trump administration's request to review the lower court order in Regents, sending it back to the Ninth Circuit for a ruling.

(pic: CitizenPath)

Their decision gave Congress a reprieve on the March 5th deadline and then-House Speaker Paul Ryan (R) indicated that there was no urgency to address the program.

March 3, 2018: In CASA de Maryland v. Trump, the US District Court ruled that the government was prohibited from using or sharing information provided through the DACA application process for enforcement or deportation purposes.

However, the court granted summary judgment to the government on the other claims challenging the termination of DACA.

April 24, 2018: In NAACP v. Trump, the US District Court for the District of Columbia ruled the termination of DACA was unlawful and that the Trump administration must resume accepting new applications.  NAACP was joined by the American Federation of Teachers (AFT) and the United Food and Commercial Workers (UFCW).

Judge John D. Bates found the administration's process "arbitrary and capricious," and the decision "particularly egregious" as it affects the lives of hundreds of thousands of recipients. Bates gave the administration 90 days to challenge the decision and produce a stronger legal argument for why the program should be canceled.

(pic: Andrew Harrer/Bloomberg)

May 1, 2018: In Texas et al. v. Nielsen et al., a coalition of seven States, led by Texas, filed a lawsuit challenging the constitutionality of DACA, requesting a preliminary injunction that would halt DACA 2012 from operating during litigation.  Alabama, Arkansas, Kansas, Louisiana, Nebraska, South Carolina, West Virginia, and the governor of Mississippi joined Texas in the suit.

August 4, 2018: In NAACP v. Trump, the US District Court ruled a new memorandum submitted by Secretary of Homeland Security Kirstjen Nielsen did not change the court's earlier judgment that DACA be reinstated.

August 31, 2018: In Texas v. Nielson, District Court Judge Andrew Hanen ruled, while acknowledging that the plaintiff states were likely to eventually succeed on substantive and procedural due process claims, he was rejecting their motion for a preliminary injunction -- recognizing the harm it would cause to DACA recipients who have relied on its protections.

"And where is the political decision made clearly? That this is not about the law; this is about our choice to destroy lives."-- Justice Sonia Sotomayor to Solicitor General Noel Francisco

November 5, 2018: In an appeal to NAACP v. Trump, the government filed a highly unusual petition for "certiorari before judgment," requesting that the Supreme Court hear the case without waiting for the D.C. Circuit to rule.

DACA Plantiffs outside Supreme Court November 12th  (Jonathan Ernst/Reuters)

November 8, 2018: In Regents, the Ninth Circuit upheld the preliminary injunction requiring the government to continue accepting DACA renewal applications. The government filed a supplemental brief seeking review of the decision under the traditional petition for a writ of certiorari.

May 17, 2019: The Fourth Circuit Court of Appeals reversed the grant of summary judgment to the government in CASA de Maryland v. Trump, concluding that DACA's termination was arbitrary and capricious in violation of the APA. The government filed a petition for a writ of certiorari to the Supreme Court seeking review.

June 28, 2019: The US Supreme Court granted cert before judgment to the government, agreeing to hear arguments on three of its petitions: Regents of the University of CaliforniaBatalla Vidal, and NAACP. SCOTUS did not issue a decision on the pending petition for certiorari in Casa de Maryland.

For now, the three US District Court orders allowing DACA recipients to submit renewal applications remain in effect, and US Citizenship and Immigration Services (USCIS) is still accepting DACA renewal applications from anyone who has previously had DACA.

November 12, 2019
The Supreme Court heard oral arguments on three cases related to the DACA, consolidating Regents, Batalla Vidal, and NAACP into one. The five conservative justices and four liberal justices heard roughly 90 minutes of debate.

Despite the decision of three federal courts that the Trump administration's decision to revoke DACA was unconstitutional, and in violation of the Administrative Procedure Act, the conservative majority appeared to be on the verge of ruling in favor of the government.

A final decision, likely to come down to the vote of Chief Justice John Roberts, is not expected until June of 2020, at the end of SCOTUS' current term.

The end result will have an impact that goes far beyond the 800,000 DACA recipients -- one that, regardless, includes the 2020 presidential election.

Important Information on applying for DACA

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Kimberly Scott

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Sources:  National Immigration Law Center, SCOTUSblog

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