NOI 52: A Victory for DACA Recipients in the Supreme Court

Immigration Attorney Jacob Tingen talks about the recent SCOTUS decision in DHS v. Regents of Univ. of California, where the Supreme Court prevented the rescission of DACA.

Jacob Tingen: Welcome once again to Nation of Immigrants, it’s been a while since we’ve jumped on, but today I’m going to talk about some very important news in the immigration world today, the Supreme Court decision about DACA that just came out this morning. So we’re going to talk about that after the intro.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host, Jacob Tingen.

Jacob Tingen: Okay. So as I mentioned, we’d be talking about this decision. It’s a decision, it’s captioned the DHS v Regents of University of California. And this is the case, it’s been a long time coming actually. I think we may have talked about it on the podcast over the summer, or the last fall and summer, when they heard oral arguments on this case. But what’s interesting is that while the case is about DACA, at the same time it isn’t about DACA. And I’ll get to that in a minute. But the long and short of it is, people are asking, well, the questions that I’m getting from clients and immigrants is “Well, is USCIS now accepting new DACA applicants?” And throughout this process, ever since the Trump administration announced that they would be rescinding DACA, people have still been able to renew their deferred action, but new people haven’t been able to apply for deferred action.

Jacob Tingen: I think that’s going to continue. I think that new people will not be able to apply, but as far as rescinding those who’ve been granted deferred action, I think that those people will continue to have it at least for the foreseeable future. So let’s talk about why that is and what the decision was based on. So this isn’t really an immigration decision. It’s more a decision about the administrative procedure act, and it really gets into the nitty gritty of how government agencies act. And we’re seeing a lot of action in that here, when it comes to immigration. Like I’ve talked before about the attorney general decisions when in the immigration court context, when the attorney general can just certify decisions to himself and essentially create law or interpretations of law. And so we’re seeing that the courts, we talked about this when we talked about a Supreme Court decision a couple of years ago, the DAPA decision, we’re seeing the Supreme Court saying, “I don’t know that we should give much deference to agencies.” That was called Chevron deference and to agency interpretation of rules that have their own making.

Jacob Tingen: Right? And so there’s this concern that Congress gives the execution of certain laws to the executive branch, rightly so, but when they do it kind of wholesale and the way they’ve done it in the immigration context, we’re seeing that judges are taking issue with how agencies are acting. That agencies are strong arming, they’re making the rules and deciding how they’re interpreted and judges don’t like that because they see a lot of inherent unfairness. And I think that’s the right call. I don’t think Chevron deference should be a thing given the way that government agencies are acting. And so what we see in DACA is, is that the government didn’t have, or didn’t clarify their reasons for rescinding DACA. So let’s back up and do a bit of a history lesson. Deferred Action for Childhood Arrivals was initially issued in 2012. It was one of those things that came out, I feel due a little bit to political pressure, for sure.

Jacob Tingen: And it helped children within a very narrow range. Children, not necessarily children, because many of them were adults, but people who’d been brought to the United States as minor children or came to the United States as minor children, graduated high school, met certain qualifications. The Obama administration said, “Look, we’re just not going to deport these people. We’re just not going to, we need to focus our enforcement, our limited enforcement capacity elsewhere. And since we’re not going to deport these people, we may as well also give them work authorization.” Okay. So that was the thrust of DACA. And because it was tailored to a narrow set of people that pretty much everyone in America agreed about except for Congress, it went through and it made a splash, but nobody filed any lawsuits against it. Right? So years go by and then the Obama administration comes out with DAPA and expanded DACA.

Jacob Tingen: So DACA was deferred action for childhood arrivals. DAPA was deferred action, I think it was for parent arrivals, but it never went into effect. There were court challenges. People took issue with this one and they said, “Look, we get the kids, but we don’t get the parents. It’s not like they were brought against their will.” And ultimately, the courts decided that, yeah, this was going too far. And one of the reasons those courts gave was “Well look, we understand that an administration can say, “We’re not going to enforce laws against this subset of people”, but then you can’t turn around and also make the affirmative step of issuing work authorization.” So DAPA and expanded DACA was struck down by courts. It was deemed illegal. So by the time the Trump administration comes in, DACA has been humming along and it’s still ongoing, right?

Jacob Tingen: So then the Trump administration says, “Well, we’re going to rescind this.” And this is what the Supreme Court decision focuses on. Essentially the top person that DHS sent in a memo and said, “look, we’re resending DACA because it’s illegal.” And that’s essentially all they said. And so the lawsuits that came basically was alleging that the decision to rescind was essentially based on just this illegality argument and that there weren’t sufficient reasons or justifications under a law known as the Administrative Procedure Act. And so basically that was the thrust of the argument is saying, “Look, the government didn’t do enough when the government makes, and when government agencies make important policy decisions, they need to explain themselves, because the public benefits from that, we as a society benefit from that.” And so that was the argument. So the rescission was held up in court because courts were saying, “Hold on, we think this Administrative Procedure Act argument is valid, is important and should be considered. So explain yourselves.”

Jacob Tingen: And one of the courts, one of the lower courts before this was all appealed to the Supreme Court, one of the lower courts went so far as to say, “Look, why don’t you issue a new memorandum and give some reasons.” And instead of giving additional reasons, all they did was take it up in court and say, “Well, these are our reasons”, but they didn’t issue a new decision that would have met the qualifications of the Administrative Procedure Act. So this is all very bureaucratic and it doesn’t really have to do with immigration. And yet that’s the reason, that’s the justification for not rescinding Deferred Action for Childhood Arrivals. It was a five to four decision. It was Justice Roberts, Kagan, Breyer, Ginsburg, and Sotomayor versus on the other four, we’ve got Kavanaugh, Gorsuch, Alito, and Thomas. And I do understand the arguments and the dissent, which was essentially “Look, courts already looked at this and determine that DACA and expanded DAPA was illegal.”

Jacob Tingen: It makes sense to me, why can’t the incoming administration just rescind this program. But then in the majority opinion, it was “Look, we agree, the executive branch has complete power to rescind this program, but when agencies make decisions that impact so many lives, they need to explain themselves.” Right? And to me, that makes sense. It’s all like “Let’s act carefully, right? Let’s explain ourselves before we do something that’s going to affect a lot.” So one of the reasons that I think one of the arguments that was compelling in persuading the justices is like, “Hold on. Let’s take care before we make decisions with wide ranging impacts, is frankly COVID-19.” So COVID probably played an influence in this decision, because apparently lawyers in the case argued that of DACA recipients, about 27,000 approximately work in the healthcare sector.

Jacob Tingen: And so if we take away their ability to work in the midst of a pandemic and health crisis, we’re not helping our nation, we’re actually hurting ourselves. And that is a recurring refrain that we see in a lot of these court arguments. And that we see in a lot of decisions that are made, is that when we hurt immigrants, we end up hurting ourselves. And I think that that’s just a lesson, I haven’t yet gone onto this podcast to talk about qualified immunity, which is something else I’d like to discuss in light of the George Floyd protests, and the Black Lives Matter movement. But I think it’s important to recognize that when we hurt minorities, we hurt all of us. And that’s true. I mean, that’s just a fact, so that’s pretty much it for Nation of Immigrants today.

Jacob Tingen: I hope that you enjoyed kind of the history lesson and the explanation of the reasoning behind the decision. There’s a lot more, if you wanted to get into the nitty gritty of the decision, that you could see the interplay between the justices and their legal reasoning and the back and forth on the different arguments that there are. But that’s the main, basic thrust of what happened in today’s Supreme Court decision on the DACA issue. So for now, DACA recipients can continue to renew deferred action. It doesn’t yet look like we have a specific answer on whether new applicants will be able to apply. It doesn’t look like that’s going to happen, but if you’re a DACA recipient, go ahead and renew. If you’ve ever had DACA in the past, and maybe you’ve let it expire, renew quickly, right? Get it in. And for any of our existing clients, make sure you come and contact us before your DACA expires, and we can keep things going for you. Thanks again for listening.

Jacob Tingen: And I hope you’ve enjoyed this episode of Nation of Immigrants. Feel free to support the podcast, go to There are donate buttons there, and follow us and find us at Tingen Law and Twitter and Facebook. We’ll be around and talking about immigration issues here in a bit. Thanks.

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