On June 18, 2020, the U.S. Supreme Court issued a decision ruling that the U.S. Department of Homeland Security’s termination of the Deferred Action for Childhood Arrivals (DACA) program was “arbitrary and capricious” under the Administrative Procedures Act (APA). (This is the standard by which the APA evaluates the legitimacy of government agency.)

As background, the Obama Administration issued a memorandum on June 15, 2012 that would defer any actions regarding the removal of individuals who did not have legal permission to remain in the U.S. Such individuals would have to meet certain requirements, such as having arrived in the U.S. before the age of 16; applying under the age of 31; having continuously resided in the U.S. since June 15, 2007; and attending school, having graduated, having obtained a certificate of completion from high school, having obtained a General Educational Development (GED) certificate, or being an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S. If they however were convicted of a felony or a significant misdemeanor (two or less misdemeanors would have been acceptable) they would not be eligible. These individuals would be allowed to apply for employment authorization for two years at a time. This program did not offer permanent residency nor a path to U.S. citizenship. Family members could not benefit either. In 2017, the current Administration challenged the legitimacy of the program and the Department of Homeland Security (DHS) rescinded the program in September. Through a series of legal actions the question of DACA’s legitimacy arrived at the U.S. Supreme Court.

The decision on June 18, 2020 criticized DHS for not following established requirements for government accountability under the APA. This includes considering whether DHS should continue a lesser part of the program and any reliance interests created by the DACA program. The Supreme Court however did not address whether DACA was a good program as a matter of policy or not. In fact, the decision indicated that DACA may be rescinded, if done properly.

For now, the DACA program can continue but this does not mean that DHS may not revisit rescinding it in the future. It also does leave open the question of whether Congress would take action and take the question out of the Administration’s hands.

The above has been provided for information purposes only. If you have any questions, please feel free to contact Clark Lau LLC to see whether this applies to you.