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The Department of Homeland Security (DHS) is unequivocably refusing to accept new Deferred Action for Childhood Arrival (DACA) applications, despite a Supreme Court ruling to let the DACA program stand.
It has also limited DACA renewals to 1-year periods. On August 6, acting DHS Secretary Chad F. Wolf defended the decision, saying that the Supreme Court did not question the authority of the DHS to rescind DACA.
DACA is an immigration benefit that provides protection against deportation and work authorization to undocumented persons who were brought to the United States as children, also known as “DREAMers.”
While the U.S. Supreme Court decision in DHS v. Regents of University of California blocked the Trump government from rescinding DACA, the Court has essentially limited its analysis on the manner by which the rescission was carried out.
Chief Justice John Roberts noted: “We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
Although the Supreme Court ruling removes, albeit momentarily, the cloud of immigration enforcement over 650,000 DREAMers and their families, the Court has made it clear that the President has both the power to continue the program and the power to terminate it, if he follows the correct legal process.
Unfortunately, there is nothing that stops the Trump government from weaponizing such power in a highly contentious election period. It is not far-fetched for him to use DREAMers as pawns in the anti-immigrant rhetoric he uses to consolidate his political base.
“In the meantime, DACA remains and until the DHS rescinds the program in a transparent and procedurally correct manner, it bears the responsibility to implement it by processing initial and renewal applications fairly and without further delay.”
But ours is a democracy, and the U.S. Supreme Court decision affirms the importance of our nation’s foundational principle of separation of powers and the need for accountability in government agency actions.
Immigration advocates and DREAMers need Congress to act immediately and pass permanent protection for DREAMers once and for all. Most Americans from both sides of the aisle want them protected with permanent residency in America. With such resounding support, Congress can and must pass a bipartisan solution to quickly and permanently address this issue.
In the meantime, DACA remains and until the DHS rescinds the program in a transparent and procedurally correct manner, it bears the responsibility to implement it by processing initial and renewal applications fairly and without further delay.
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.