Today, the U.S. Supreme Court, in a 5-to-4 decision written by Chief Justice John Roberts, rejected the Trump Administration’s attempt to dismantle the 2012 Obama-era program to shield undocumented immigrants brought to the United States as children (“Dreamers”) from deportation.
The DACA program provides relief to an estimated 650,000 undocumented immigrants brought to this country while under the age of 16. It is estimated that 90 percent of DACA recipients are employed and 45 percent are enrolled in school. Nearly 30,000 of these individuals work in the healthcare sector.
Since 2017, when official announcements were made about the Trump Administration’s plan to rescind the DACA program, employers struggled with the notion of replacing hundreds of thousands of DACA employees in an era of historically low unemployment numbers. This decision is welcome news for employers across the nation – many of whom have been vocal supporters of the DACA program.
While DACA does not provide a valid legal status or path to citizenship in the U.S., it does provide a temporary protected status that shields these individuals from deportation in increments of two years. It also provides work authorization. Participants may file an application to renew their DACA authorization for an additional two-year period.
During the Trump campaign, a key agenda item was to dismantle the DACA program as an unlawful executive action. The current administration has argued throughout that the U.S. Department of Homeland Security had absolute discretion and authority to terminate the DACA program unilaterally.
Speaking for the Court, Chief Roberts opines, “We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern…We address only whether the agency 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.”
Despite this victory, the Court has made clear that the President has both the power to continue the program and the power to terminate if he follows the correct legal process. Today’s decision puts the ball in Congress’ court to offer a permanent solution for Dreamers, which has to date been unsuccessful. The President also is not precluded from issuing a new Executive Order, following the Supreme Court’s guidance.
This decision comes during an uncertain and challenging time for immigration policy as we await a rumored new Executive Order from the Trump Administration targeting employment-based visas. It is yet to be seen how this loss may impact or encourage the new highly anticipated Executive Order further limiting legal immigration.
Because of the highly fluid and rapidly changing nature of the current immigration environment, we encourage you to regularly consult our website and subscribe to our Immigration Blog for more information about developing immigration issues.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.
This blog post does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.