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Will Supreme Court Overturn DACA?


“Dreamers know they are American. They just lack a paper to prove it.” Univisión television anchorman Jorge Ramos speaking on the courthouse steps, Washington DC, November 12, 2019

“Many of the people in DACA, no longer very young, are far from ‘angels.’ Some are very tough, hardened criminals.”  Donald J. Trump (@realDonaldTrump) November 12, 2019

DACA – Deferred Action for Childhood Arrivals

Dreamers – DACA applicants, recipients or anyone who grew up in the United States without legal authorization and has a dream

In 2010, four young people embarked on a 1,500 mile walk from Miami, Florida to Washington DC to bring awareness to the plight of American residents who had been brought to the U.S. as children but never received any legal documentation. Until now, the law has allowed children of any nationality to attend public schools, but upon turning 18, without DACA, these new adults cannot get driver’s licenses, cannot attend college, university or vocational schools, cannot work legally. Even under DACA, many do not meet its strict requirements and have been picked up by ICE at bus stops, on streets, if they step outside their doors.

DACA (Deferred Action for Childhood Arrivals) was instituted in 2012 by then-President Obama’s executive order. Once the complicated paperwork is accepted and relief is granted, DACA expires every two years and needs to be renewed. At the same time, the fees for DACA are being increased from $495, and the government is not accepting new applications, only renewals, after a January 2018 injunction was upheld in August 2019.

USCIS (United States Citizenship and Immigration Service) says it tries to process DACA renewals in 120 days, but waits have been longer and paperwork may be displaced. Social organizations United We Dream and the National Immigrant Law Center say, “Anecdotally, we know that it’s taking USCIS about 3-5 months to adjudicate individual applications, but processing times that USCIS reports online indicate that some cases are taking longer.” They also strongly urge the use of a lawyer, so applicants need to add in hefty legal fees. 

But applying too early could result in your renewal application being set aside as the curtain closes on your renewal period, they warn. At best, your renewal may begin before your current authorization has expired, cutting precious months off the already short period you have on each DACA application.

They also say to make sure you are using the most current forms, which are frequently amended or changed. Consulting the USCIS website reveals:

“The information on this page may be out of date. However, some of the data may be useful, so we have arquived the page.”

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Source: https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca

Standing in the cold drizzle outside the courthouse, Monserrat recalled a childhood living with her grandparents until her mother brought her to the U.S. “If I went back to Mexico, I’d be considered American. If I stay here, I’m never considered American…. I grew up here. This is my home!”

According to the Migration Policy Institute, DACA is covering over 660,000 persons who arrived from other countries as children. Nearly 80% are from neighboring Mexico. That number declined by 100,000 since DACA started; 40,000 persons were eventually granted residency (DACA is a deferment from deportation consideration and not residency) while 60,000 lost DACA status. There are an estimated 1.3 million persons who would be eligible for DACA, and as many as 3.6 million who would have been granted some form of legal status under the DREAM (Development, Relief and Education for Alien Minors) Act. The Dream Act was a bipartisan legislation first introduced back in April 2001 that suffered many cuts in Congress over the next 11 years until Obama instituted DACA by executive order in 2012.

There are actually four cases before the Supreme Court today. Three are consolidated and include McAleenan, Secretary of Homeland Security v. Vidal, while the fourth case, Hernandez v Mesa, concerns a boy shot and killed by Border Patrol as he stood in Mexican territory. The Supreme Court convened for a one hour argument for all four cases.

The gist of the consolidated cases is that the 2017 DHS (Department of Homeland Security) decision to “wind down” DACA was unlawful. Then-Attorney General of the United States Jeffrey Sessions informed then-Secretary of Homeland Security Elaine Duke that former President Obama’s executive order granting DACA was unconstitutional. In the first of the consolidated lawsuits, DHS v University of California Regents, the University retorted that it was Duke’s “rescission” that did not abide by the law.

The Supreme Court’s description of McAleenan v Vidal sums up the questions before the court today:

1. Whether DHS’s decision to wind down the DACA policy is judicially reviewable.

2. Whether DHS’s decision to wind down the DACA policy is lawful.

The court is split, with four liberal judges – the three women judges, Kagan, Sotomayor, and Ginsburg, and Justice Breyer – opposing four conservative judges, including Trump’s two appointments, Kavanaugh and Gorsuch, Thomas and Alito. Two of them, Gorsuch and Alito, have argued that the case should not even be before the Supreme Court. Chief Justice Roberts, a conservative Bush appointment, has shown recent signs of sympathy for immigrants in blocking a citizenship question from appearing on the 2020 census.

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