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Thursday, June 18, 2020

What next on DACA?

The following post is by Juan Carolos Gomez of FIU, who runs the Carlos A. Costa Human Rights Immigration Clinic and has worked on behalf of DACA recipients.

The Supreme Court’s finding that the Trump Administration’s revocation of Deferred Action for Childhood Arrivals (DACA) was reviewable and that how the decision to revoke DACA was made violated the APA is a temporary victory for DREAMERS and other immigrants. Chief Justice Marshall’s heirs (or a least a majority with a twist of plurality of them) stood up for Article III courts’ authority to check the actions of the executive branch. Today’s decision is more of a victory for those believe in limiting the power of any administration to avoid or to limit judicial review, than it is for immigrant rights advocates.

We need to see what Congress and the Administration will do now as to DACA and Temporary Protected Status (TPS).  In addition to the approximately seven hundred thousand with DACA, there are approximately three hundred thousand persons from El Salvador, Honduras, and Nicaragua who have TPS and who are in a similar situation to the DREAMERS with DACA. I say DREAMERS with DACA because there are many others who would qualify for a work permit and protection under DACA but have been prevented from filing applications for DACA under the revocation policies. These numbers also do not include those who were too afraid to apply because of fear or lack of resources. To a degree the authority to review portion of today’s decision helps those with TPS in their fight.

The Supreme Court’s decision does not bar the Administration from attempting to revoke DACA again. Some will argue that it is free to do so as long as it does it in compliance with the APA. I suggest that reasonable and humane people quickly look for solutions to the problems faced by the over a million persons caught in legal limbo under DACA or TPS.  Individuals with DACA or Temporary Protected Status are safe for the moment only because of various court decisions. These courts could declare that TPS is over on other grounds. We know that we should expect the Administration to keep attempting to revoke. The Administration kept testing the legal waters with various versions of the travel ban until it was able to get the Supreme Court to accept a revised travel ban. Do not be surprised if the decision to revoke DACA is not being edited as you read this post.  

As long as the immigration policies of this Administration are being driven by anti-immigration forces , no one who is subject to immigration laws is safe. As we focused on the Supreme Court decision this month, the Department of Justice reassigned pre-Trump members of the Board of Immigration Appeals (the highest administrative appellate body on immigration issues) and issued proposed asylum regulations that would almost eliminate the possibility of winning asylum. The proposed regulations include a mechanism for immigration judges to permanently bar asylum applicants from the United States if that immigration judge believes the application was baseless. While we focus on the Supreme Court’s decision, the Department of Homeland Security is free to do what it wants to do with aliens whose cases will never be heard by an Article III court or possibly even an immigration judge who is expected to meet quotas worthy of a factory production line. Most immigrants are unrepresented. In isolated detention centers across the country the actions of the Executive Branch go unchecked.

While today’s decision gives hope to many, there is a need for  remedies for those whose lives have been destroyed by unfettered and arbitrary use of power by the Administration.

Posted by Howard Wasserman on June 18, 2020 at 05:08 PM | Permalink


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