Litigation History The Deferred Action for Childhood Arrivals program – commonly referred to as DACA – was implemented after then President, Barack Obama, signed an executive order protecting the rights of children who were brought to the United States illegally as children by their parents.  The program gained immediate critics, mostly over the fact that President Obama used executive action rather than seek the approval of Congress in implementing the program. Following the change to the new administration, in 2017, then Attorney General Jeff Sessions, announced that the government was terminating the DACA program.  The same day, the acting Secretary of Homeland Security (DHS) issued a memorandum directing DHS employees to reject all initial DACA applications as well as any renewal applications.  Following that decision, numerous lawsuits were filed challenging the administration’s actions to terminate DACA. Initially, two U.S. District courts halted the government’s termination of DACA and required U.S. Citizenship and Immigration Services to continue accepting applications of individuals who had previously been recipients of DACA.  A third District Court twice issued Orders striking down the termination of the DACA program. Even with the lower court rulings, the topic of DACA remained a highly debated topic in 2018.  Although Democrats and Republicans appeared to have reached a deal in 2018, the deal was withdrawn following comments by President Trump.  During that time, the Trump administration petitioned the United States Supreme Court to rule on whether they had the authority to cancel the program.  The Supreme Court denied the petition because the Appeals Court had not yet issued a decision on the matter. Following the rejection of the petition, the decision of the lower court was appealed to the U.S. Court of Appeals for the Ninth Circuit, who ruled in favor of striking down the termination of DACA.  The ruling acknowledged that the President does have powers to alter the policies of earlier administrations, but to do so, they would need to provide a rationale for doing so. The Ninth Circuit held that the Trump administration’s reasoning did not withstand scrutiny.  Just this past May, a second federal appeals court issued a similar ruling. Before the justices left for their summer break, the court agreed to hear the appeal from the Ninth Circuit along with two others in which appeals Courts have not yet ruled.  The administration seeks to argue that the implementation of the DACA program by the Obama administration was an unconstitutional use of executive authority.  In support of their argument is a Fifth Circuit case which previously ruled against President Obama holding that another program, Deferred Action for Parents of Americans and Lawful Permanent Residents (or DAPA) was unconstitutional. Following the death of Justice Anotonin Scalia in 2016, the Supreme Court deadlocked 4 to 4 on the appeal of that Fifth Circuit’s ruling, leaving its decision in place. The oral arguments for the DACA case will be heard at some point of the Supreme Court’s next term which begins in October.  During that time, Congress will still be working to pass legislation protecting DACA.  If so, any decision by the Supreme Court would be deemed moot.  Because any decision will likely take some time by the Justices of the Supreme Court, it is very likely that DACA will remain a major topic in the upcoming 2020 election. If you or a loved one is a DACA recipient and concerned about your status or theirs, it is important to consult the guidance of an experienced New York immigration lawyer who will inform you of your legal rights and available pathways to citizenship. The lawyers at Bretz & Coven, LLP are experienced in handling various immigration matters, including those that relate to DACA. For more information or to schedule a consultation at our New York City or New Jersey law office, call (212) 267-2555.