It has been a historic year of Supreme Court rulings. We celebrated during the early hours of June 18th when the highly anticipated Supreme Court decision on the Deferred Action for Childhood Arrivals (DACA) program was publicly announced.
A collective sigh of relief was shared among millions across the United States. With this order, nearly 800,000 current DACA recipients were given a peace of mind, knowing their fears of imminent deportation could be set aside, while others were given a sense of hope, knowing that new DACA applications would now be processed. All these folks, while unique and extraordinary in their own way, have one thing in common: the only place they have ever called home is here with us, in the United States.
These feelings of relief were unfortunately short-lived, as we began hearing reports that new DACA applications were still being rejected by the Department of Homeland Security, despite the Supreme Court’s ruling. With no official statement explaining the reason for these rejections issued by the Department of Homeland Security, or any of its agencies, immigration advocates everywhere, including our firm, began to sound the alarms.
On Tuesday, July 28th, our growing concerns were finally confirmed by acting DHS Secretary Chad Wolf in a memo outlining the Administration’s plan to reject new DACA applications. Wolf presented new rules as “interim changes” that will remain in place for an undefined period so that the Administration can decide what to do with new applications.
As legal advocates, we would be remiss to not direct the President, Mr. Wolf and their agencies to the ruling issued by the “Highest Court in the Land” on June 18th, 2020, when it ordered exactly what the Administration had to do with new applications.
Our Managing Partner, Fiona McEntee, has been witnessing the evolution and development of the US immigration system for over twelve years. Throughout, she has always used her platforms to be vocal on issues affecting our immigrant community. She has also witnessed how litigation can be a very effective tool when it comes to dealing with this Administration. In her public statement denouncing these rejections, Fiona reminded the Administration of this:
Fiona has since reiterated her position, stating: “Any rejection of these applications will be swiftly met with litigation.”
It is clear that the Administration has intentionally misinterpreted the Court’s ruling in order to weaponize it. Wolf argues that it was granted the authority to reject new applications by this very decision. Indeed, President Trump had been hinting at this prospect, claiming in early July that the Supreme Court had bestowed him broad authority with its DACA decision.
But immigration experts have been correct to point out that this ruling does not grant the authority to “limit [DACA]’s scope in the interim”. Instead, it simply enforced the notion that the Administration retains the authority to renew its efforts in ending the program, but it had to do so legally. (While never using the word “illegal“, the Court ruled that the Administration’s actions to end the program were “arbitrary and capricious”).
Fiona explains that what this means is, “[u]nless and until it is rescinded properly, DACA should be restored to its original form. It does not mean that DHS can now decide to reject new DACA cases.”
This is not the first time the Trump administration has refused to enforce SCOTUS orders deemed unfavorable to the President and his politics. Recently, there has been mounting criticism from advocacy groups and independent watchdog organizations that have reported on the Administration’s failure to take any actions to implement or enforce the landmark decision protecting LGBTQ+ workers from discriminatory practices.
This is also not the first time that immigration experts and lawyers have sounded the alarms to this pattern of disturbing behavior, as Fiona pointed out:
“Since Day 1, this Administration has consistently tried to limit all types of immigration into the U.S. and this is, yet again, another example of this. However, the American people’s support for Dreamers has been steadfast and there’s no doubt that we will see this support again here. We stand we Dreamers, we know that #HomeisHere.”
This administration’s anti-immigrant agenda has not only demonstrated the Executive Branch’s defiance of its co-equal branches of government, but it has also revealed the risks involved when immigration law enforcement is wholly-centralized in a singular branch of government. For years, it has been (im)migrants, noncitizens, asylees, refugees, students, the undocumented, some of the most vulnerable among us, who have had to face the consequences from congressional leaders who have either failed to act on, or actively opposed, sorely-needed comprehensive immigration reform. We now know just how badly those risks and consequences become when that government is led by a politically-motivated and divisive administration.
With the recent litany of brazen displays of defiance for the rule of law, experts everywhere are now expressing extreme concern for a looming “Constitutional crisis” at the hands of this Administration – a crisis immigration lawyers and advocates have been all too familiar with, but also one that has equipped us to fight.
And, fight on we will.