Immigration Update: DACA Preserved (for now) and Supreme Court Travel Ban Decision Looms

May 1, 2018

A Federal District Court Judge recently ordered that DACA (Deferred Action for Childhood Arrivals) program protections must stay in place and that the U.S. Department of Homeland Security (DHS), which administers the program, must resume accepting new applications. The judge characterized the Trump administration's decision to phase out DACA as "arbitrary and capricious because the department failed to adequately explain its conclusion that the program was unlawful."

Judge John D. Bates of Federal District Court for the District of Columbia further stayed his decision for 90 days to give DHS the chance to explain its reasoning for canceling it. If DHS fails to justify the program's cancellation, the judge will order the department to accept and process both new and renewal DACA applications.

Close to 700,000 young undocumented immigrants (dubbed "Dreamers") have renewed their DACA status every two years, which allows them to work legally in the United States, secure driver's licenses and pay U.S. taxes. Although the Trump administration technically rescinded the DACA program in March, previous court orders have let Dreamers renew their applications while challenges to the program rescission moved through the legal system.

The Trump administration and Department of Justice say they'll continue to defend the legality of the decision to end the DACA program and look forward to vindicating that position in future litigation.

Another key immigration issue - the so-called travel ban - is also making headlines. On April 25, the U.S. Supreme Court heard its final oral argument of the term - the most highly anticipated case relating to the administration's third iteration of its travel ban. This iteration, presented as a presidential proclamation by President Trump on September 24, 2017, indefinitely restricted most travel from the majority-Muslim countries of Iran, Libya, Somalia, Syria and Yemen, as well as North Korea and Venezuela (Chad was also on the list, but was later removed on April 13, 2018).

Arguing for the administration, Solicitor General Noel Francisco said the latest ban was the result of a "worldwide multi-agency review" and was based upon "foreign policy judgment rather than religious animus." Representing the state of Hawaii, Neal Katyal, a former acting solicitor general for the Obama administration, argued that the administration did not have authority to abrogate congressionally implemented immigration laws. An hour-long oral argument focused on issues relating to the authority of the President to execute his discretion and his decision-making authority relating to the admission of foreign nationals under federal law, the related national security concerns, free exercise of religion and the establishment clause.

It appeared that the conservatives on the court held sway and influence in the discussion, but the final decision is hard to predict. The court is expected to issue its final decision when its term ends in late June 2018.

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