On June 18, 2020, the Supreme Court struck down the administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The program was restored to its pre-rescission state as a result of that decision.
The administration failed to comply with the decision, refusing to accept new DACA applications. Now, the Federal District Court of Maryland, which had ruled, as the Supreme Court later did, that the DACA rescission was “arbitrary and capricious”, has ordered the government to resume accepting new DACA applications.
The DACA program allowed immigrants lacking legal status who had lived continuously in the U.S. since July 2007 and who were under age 16 when they arrived in the U.S. to apply for protection from deportation and for work authorization. However, one had to be at least 15 years old to apply. Since the rescission announcement on September 5, 2017, tens of thousands of otherwise eligible youth who turned 15 after that date could not apply.
The Federal District Court of Maryland’s order means that USCIS must once again accept first time DACA applications. It remains to be seen if the agency will do so, or if they will continue to defy the courts.
Another question is whether the administration is crafting a new method to undermine the DACA program without overtly rescinding a program in an election year that has overwhelming bipartisan public support.
On July 15, 2020, USCIS announced new policy guidance affecting guidelines for determining whether certain applications, including for many work permit categories, should be denied as a matter of discretion.
A review of the discretionary factors indicates that DACA holders may find their work permits discretionarily denied because they lack a way to get permanent residency soon, and because they may have entered the country (even unwittingly when they were toddlers with their parents) without authorization. Even if they are granted a work permit, the new policy guidance is likely to lead to long delays in obtaining a work permit after requesting one.
Congress must act once and for all to allow DACA recipients and others who were eligible for DACA but were unable to apply for it since September 5, 2020 to request permanent residency. H.R. 6, The Dream and Promise Act, would do just that. The House passed the bill in June 2019. It’s high time the Senate did the same.