5 Takeaways from the U.S. Supreme Court Decision on DACA

by Cristina A. Godinez, Esq.

Photo | Immigrant Legal Center immigrantic.org

When the U.S. Supreme Court decided to ditch the rescission of Deferred Action for Childhood Arrivals (DACA) as arbitrary and capricious, the collective sigh of relief among the undocumented was particularly audible.

For the past eight years, the DACA program provided undocumented persons who were brought to the U.S. as children protection from deportation and work authorization. The stakes for some 650,000 DACA beneficiaries were especially high because early this year, the Immigration and Customs Enforcement (ICE) announced it will deport them should the Supreme Court rule in favor of the government’s DACA rescission.

With this major DACA win, here are five takeaways going forward:

  1. DACA renewal request – Those whose DACA will expire soon and those whose DACA will expire in 365 days or less can file an application to renew their DACA.
  2. Initial DACA request – Those whose DACA expired for more than 365 days and those whose DACA was terminated at any point can file an initial (not a renewal) DACA application. This means you will need to provide information about your arrival to the U.S. before your 16th birthday, and educational and/or military service information. You will also need to submit documents showing that you satisfy each DACA requirement.
  3. Wait for USCIS guidance – If you have not applied for DACA before, you will need to wait for USCIS to issue guidance on new initial DACA applications. Until the Trump administration takes steps to rescind DACA in accordance with correct administrative procedure, USCIS is required to implement the DACA program.
  4. Extreme Caution with Advance Parole – Given the Covid-19 travel restrictions, USCIS processing delays and the overall uncertainty on the future of the DACA program, DACA recipients must approach the advance parole issue with extreme caution. Since advance parole is part of the DACA program, USCIS should provide guidance on how DACA recipients can obtain advance parole.
    Previously, a DACA holder may obtain advance parole on humanitarian, educational or employment grounds, in order that s/he may travel outside the United States and return lawfully. Since the Trump administration took steps to rescind the program, advance parole – as an ancillary benefit of DACA has been largely unavailable.
  5. DACA is relief, not the remedy – It is always understood that DACA was never for keeps from the get-go. This program could be taken away at any time, if the Department of Homeland Security (DHS) was so inclined because such is the nature of administrative discretion.

The most important takeaway is that a law must be passed to provide a path for the intended beneficiaries of the DACA program to earn legal status.

Related article: U.S. Supreme Court throws out dismantling DACA

(Cristina Godinez is an attorney who has provided immigration solutions to families, businesses and at-risk migrants in the United States for over 15 years. She worked with the immigration law practice group of a top-tier global law firm and later, with the world’s largest immigration law firm. She is also the attorney at the faith-based Migrant Center of New York where she oversees the delivery of immigration legal services to low-income clients. Cristina is a member of the American Immigration Lawyers Association.)

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