In September, 2017, the Trump Administration took formal action to rescind Deferred Action for Childhood Arrivals (DACA), President Obama’s 2012 executive order protecting undocumented immigrants who were brought to the U.S. as children and who meet several guidelines from deportation. The Administration’s decision to rescind the program plunged the fate of hundreds of thousands of people into limbo. On June 18, the U. S. Supreme Court released its much anticipated decision, invalidating the Trump Administration’s decision to rescind DACA. Here, immigration law experts Jayashri Srikantiah, the founding director of Stanford Law’s Immigrants’ Rights Clinic and Associate Dean of Clinical Education, and Lisa Weissman-Ward, a Lecturer in Law and supervising attorney with the clinic, discuss the case and decision.
How many people have benefited from DACA and might be impacted by a rescission of DACA? And what are the benefits of DACA?
Approximately 700,000 individuals directly benefited (and continue to benefit) from DACA. People who applied for and received DACA are eligible to receive various protections. First and foremost, a grant of DACA confers “deferred action,” a promise not to deport an individual. Under DACA, deferred action lasts for an initial period of two years. After that time, individuals have an opportunity to renew and thus extend their deferred action status. Second, an individual with an approved DACA application receives a work authorization document that provides the individual with the ability to work lawfully in the United States during their period of deferred action. Finally, armed with valid work authorization, DACA recipients can obtain a valid social security number, as well as a number of other government benefits and opportunities, including driver’s licenses.
DACA both benefits the individuals who receive deferred action and our country as a whole. For example, as the Court pointed out, DACA recipients in the workforce have contributed many billions of dollars in economic activity and are associated with millions of dollars in federal tax revenue. Local and state governments are also the beneficiaries of increased tax revenue on account of DACA recipients in the workforce. Finally, DACA recipients and communities benefit from a range of intangible benefits including the ability to engage in one’s community through organizing without fear of deportation. DACA elevates and expands educational opportunities and job opportunities, both of which have positive impacts on immigrant communities and our country as a whole.
Can you describe how the legality of DACA came before the Supreme Court?
In June of 2012, President Obama announced DACA by executive order. Individuals first began to apply in August of 2012. In November of 2014, President Obama announced the expansion of DACA (covering individuals and removing certain age limitations) as well as a new deferred action program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). In February 2015, just days before the anticipated date to begin filing for expanded DACA and initial DAPA applications, Texas filed a lawsuit seeking to stop both the expansion of DACA and the initiation of DAPA. Twenty-six states joined Texas in the litigation (United States v. Texas). The lower court issued a decision preventing the Obama Administration from expanding DACA and from moving forward with DAPA. This case went up to the Supreme Court. Following Justice Scalia’s death, the Supreme Court issued a split (4-4) decision, leaving the lower Court’s decision in place.
In June 2017, President Trump announced that his administration was rescinding the DAPA memorandum. In September 2017, President Trump announced that this administration would take steps to also formally end DACA. Directly impacted immigrants, along with nearly a dozen states representing their residents, organizations, and educational institutions, filed several lawsuits to challenge Trump’s rescission decision. Appeals from those lawsuits eventually made their way to the Supreme Court.
What are the highlights of today’s DACA decision?
The Supreme Court held today [June 18] decision held that the manner in which DHS [Department of Homeland Security] sought to rescind DACA violated the law. The case presented three questions: 1) Whether DHS’ decision to rescind DACA in the first instance was reviewable by the Court; 2) If it was reviewable, whether DHS violated the Administrative Procedures Act (APA) in the manner in which it rescinded DACA; and 3) Whether DHS’ decision to rescind DACA violated the Equal Protection Clause of the Fifth Amendment. The Court’s opinion centered on the first two questions. In an opinion authored by Chief Justice Roberts, a majority of the Court held that it had the authority to review the rescission and that the manner in which DHS rescinded DACA violated the APA. The Court clarified that DHS was required to defend its decision to rescind DACA based on the reasons it gave when it acted to rescind. The Court also held that DHS improperly failed to consider and weigh the reliance interests of DACA recipients.
It is important to note that the Court’s decision today did not decide whether DACA, itself, is legal or whether DHS has the authority and power to ultimately rescind DACA. In fact, the decision specifically noted that, “[t]he dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may.”
What is your advice for people who have DACA?
Now that the Supreme Court has invalidated the Trump Administration’s rescission of DACA, individuals who have DACA should be eligible to renew and, as before, are encouraged to seek legal advice before renewing. People who are eligible for DACA, but who have not previously applied (and would be applying for the first time), should definitely consult with an attorney to determine if they should apply now.
We expect that the DHS will respond to the Court’s decision by providing its interpretation of the decision. That interpretation may affect the options available to individuals under DACA. It is also possible that there will be additional court challenges after DHS provides its interpretation if DHS seeks to try again to rescind DACA.
Today’s DACA decision was a surprise for many. Are there any other takeaways from the Dreamer movement more generally?
It is important to recognize that the movement for DACA, and to uphold DACA in the courts, was led by student organizers and immigrants’ rights advocates. Immigrant organizers and students pushed for President Obama to create DACA in the first place. Organizers led demonstrations and were instrumental in creating broad coalitions that included tech companies, states, localities, universities, big business, and others. Organizers led every step of defending DACA in the courts. Today’s decision is a recognition of the importance of lawyers and organizers collaborating to advance immigrants’ rights. It is also a reminder that lawyering for social change means following the lead of directly impacted communities and prioritizing amplification of those voices that have sometimes been relegated to the side lines in legal spaces.
Where can members of the Stanford community go for more resources and help?
Any undocumented or DACA Stanford student can obtain a free and confidential legal consultation by emailing firstname.lastname@example.org. Students will be directed to the Stanford Immigrants’ Rights Clinic, which is providing free, pro bono consultations and referrals. Additional legal services, including assistance with renewals and other support is also available on an as-needed basis. Individuals who wish to learn more about the effect of the Court’s decision may wish to visit the Immigrant Legal Resource Center website at https://www.ilrc.org/daca and those who wish to become involved in advocacy for Dreamers may visit the United We Dream website at https://unitedwedream.org/.
For other information and resources specific to Stanford students, please visit: https://undocumented.stanford.edu/.
For other information and resources specific to Stanford faculty and staff, please visit: http://immigration.stanford.edu/getting-help-and-support/help-and-support-for-faculty-staff/ .