Sep 24, 2019
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner
On November 12th, the U.S. Supreme Court will hear arguments on the validity of the Trump Administration’s cancellation of the DACA program. A decision is expected in June 2020—when the country will be in the midst of the next presidential campaign. That high court ruling will effectively determine if 800,000 young people with temporary legal status will suddenly be subject to deportation.
DACA or “Deferred Action for Childhood Arrivals” permits immigrants who came before the age of 16 and have been in the U.S. at least 12 years to obtain a work permit. Anyone with a serious criminal record is ineligible. There is no path to permanent residence. Still that work authorization allows young people who have lived their whole life in the shadows to get a valid social security number, a driver’s license, and a job; in short, it gives them a future.
Here’s a summary of where DACA stands now and what the Supreme Court will consider:
On September 5, 2017, Donald Trump announced the rescission of the DACA program. Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals. While that case was pending, two other federal judges issued similar injunctions against Trump.
Earlier in 2018, the Administration asked the U.S. Supreme Court to expedite its review of these rulings, but the Supreme Court refused. In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals.
In November 2018, that Court ruled in favor of the DACA recipients and against the Trump Administration. The decision of the three-judge panel was unanimous. While this is not a final decision, it affirms the lower court’s injunction requiring the administration to keep the program open for renewals. The Ninth Circuit Court of Appeals in San Francisco told the Trump Administration it acted without legal basis when it sought to closed down DACA. To read the decision: https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000927
"We conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA — at least as justified on this record — is arbitrary, capricious, or otherwise not in accordance with law," reads the opinion.
Two other circuit courts — in New York and the District of Columbia — have also ruled against the Trump Administration, issuing similar orders requiring the program to remain open. All three of these decisions are in front of the Supreme Court.
The Supreme Court will rule on whether Trump’s elimination of DACA was in fact “arbitrary and capricious” and therefore violated the Administrative Procedure Act. All 3 courts have ruled that Trump’s action did violate that law. The highly-divided Supreme Court will probably render a 5-4 decision with Chief Justice Roberts being the likely deciding vote. A lot will be riding on what that one jurist thinks.
For now, persons who already have DACA can continue filing renewals. I recommend that applicants do so at least 150 days before their DACA expires.
Unfortunately, new applicants are still not eligible. That means, young kids, turning 15 who would have been eligible for this legal status, are now still subject to deportation.
Also, the Trump Administration denies DACA holders the permission to travel – a privilege that was previously available under Obama. This often results in tragic consequences. I know a 19-year-old college student who spent their entire life here, but unknowingly lost his status by taking a weekend trip to Tijuana. He now is stuck in his home country without a way to return for the foreseeable future.
In June, the House of Representatives passed the Dream and Promise Act, H.R. 6, by a vote of 237-187, pretty much along party lines. This bill, which would have given DACA recipients a path to residence, was never considered in the Senate. Senate Majority Leader Mitch McConnell refused to let it come to a vote.
Our County has an estimated 10,000 DACA recipients. Many attend SSU or Santa Rosa Junior College; some are in high school. Many have careers and families.
For the next nine months, I will devote this column to profiling some of the lives in the balance with this decision. You can also see the film profiles produced by My American Dreams, a local non-profit which makes films for PBS humanizing the immigrant condition. Check out some of those at www.MyAmericanDreams.org.
Two new My American Dreams videos will be broadcast this fall on our local station, KRCB, and on the PBS network. Stay tuned for more info on this to come.
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