The Supreme Court of the United States has rejected the Trump administration’s request that it review a California federal court’s order temporarily halting the federal government’s action to end the Deferred Action for Childhood Arrivals (DACA) program. The request for review filed by the U.S. Department of Justice broke from the regular process in that it effectively asked the Supreme Court to preempt review of the underlying order by the Ninth Circuit Court of Appeals, an action only undertaken in a handful of exceptional circumstances. The decision by the Supreme Court clears the way for the Ninth Circuit to complete its own review of the case. In light of the Supreme Court’s refusal to intervene at this stage, the federal government must continue for the time being to allow individuals to file DACA renewal requests despite President Donald Trump’s announced rescission of the DACA program on September 5, 2017.
The Origin of the DACA Program
President Barack Obama originally established the DACA program in 2012 in order provide relief to certain undocumented immigrants who were brought to the United States as children. The program allowed qualifying individuals to apply for deferred action from deportation and provides them with work authorization. There are estimated to be nearly 800,000 individuals currently holding DACA status.
Injunction Against DACA Rescission
On January 9, 2018, the United States District Court for the Northern District of California issued a nationwide injunction against the administration’s efforts to end the DACA program, forcing the federal government to keep DACA in place. Although the court’s ruling preserved the opportunity for those already possessing DACA status to reapply for benefits, it did not create an opening for individuals to file entirely new DACA applications.
In addition to appealing the California court’s order to the Ninth Circuit through the regular process, the administration also took the unusual step of filing a petition for certiorari with the Supreme Court. It is important to note that the Court denied the government’s request for review “without prejudice,” meaning that it could still agree to take up the case once review by the lower court has run its course.
Stalemate in Congress
In the wake of the president’s original rescission announcement, hopes turned to the U.S. Congress to craft a legislative solution that would permit DACA beneficiaries, known as DREAMers, to remain in the country legally. Congress, however, has so far failed to reach an agreement on the matter. Although the Court’s decision preserves for now the ability of DREAMers to continue to receive benefits and apply for two-year renewals under the DACA program, the additional breathing space could potentially undercut Congress’s sense of urgency to act, reducing the chances of crafting a longer-term legislative fix.
Impact on Employers
Although the ultimate fate of the DACA program has not yet been decided, the administration’s plans to end it have been temporarily shelved by the federal court’s nationwide injunction. As a result, employers will be expected to follow current law under which they are not permitted to treat DACA beneficiaries differently from any other employees. Any employees who are DACA beneficiaries will remain work-authorized throughout the validity period of their acceptable work authorization. Employers can rely on their Form I-9 compliance records and completed Form I-9 expiration dates to confirm employees’ work authorization expiration dates.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments on this issue and report on updates as they occur.