In Department of Homeland Security v. Regents of the University of California, the U.S. Supreme Court found that the rescission of the Deferred Action for Childhood Arrivals (DACA) program in 2017 was arbitrary and capricious in violation of the Administrative Procedures Act. The rescission has been vacated and remanded to the DHS to reconsider what to do about the hardship to DACA recipients. The ruling, handed down June 18, 2020, can be found here.
DACA was created during the Obama administration in 2012 to allow young unauthorized immigrants to remain in the country with temporary lawful status and apply for work permits. DACA status is granted for two years and is renewable. The Migration Policy Institute estimates the number of DACA recipients to be 643,560 as of March 2020.
On Sept. 5, 2017, the DHS issued a memorandum rescinding the DACA program. Multiple groups challenged the rescission, claiming the ruling was arbitrary and violated due process. Three district courts joined the DHS memorandum and required that DACA recipients be able to apply for renewal.
The Supreme Court agreed to hear the case and oral arguments were presented Nov. 12, 2019. In its June 18, 2020, ruling, the court found the rescission in violation of the Administrative Procedures Act but not in violation of equal protection under the due process. The court particularly took issue with the reasoning given by the DHS for rescinding DACA and the agency’s failure to consider other policy options to address the program after it was determined to be illegal by then-Attorney General Jeff Sessions.
However, the court also acknowledged that the DHS may properly rescind DACA in the future and that the department will continue to be bound by the attorney general’s determination, but suggests that the DHS may revoke benefits to DACA recipients while maintaining their deferred removal. Ultimately, the program’s longevity depends on altering the determination of illegality, which may fall to Congress.
The top 10 states of residence for DACA recipients are California, Texas, New York, Florida, Illinois, New Jersey, Georgia, North Carolina, Arizona and Washington. The top 10 countries of origin are Mexico, El Salvador, Guatemala, Honduras, South Korea, Peru, Brazil, Ecuador, Colombia and the Philippines.
States have taken a range of actions related specifically to DACA recipients, or more broadly to unauthorized immigrants, including driver’s licenses, occupational licensing, in-state tuition, and health benefits.
- Driver’s Licenses. All states issue driver's licenses to DACA recipients. Currently, 15 states and the District of Columbia allow unauthorized immigrants to obtain a driver’s license. In 2020, Virginia became the latest state to extend driver’s licenses.
- Professional Licenses. The requirements to obtain a professional license vary from state to state. Fifteen states—Arkansas, California, Florida, Illinois, Maine, Minnesota, Nebraska, Nevada, New Jersey, New York, Oregon, South Dakota, Utah, West Virginia and Wyoming—have enacted legislation to provide or improve professional licenses for certain populations, such as DACA recipients, legal immigrants and/or unauthorized immigrants. Professional licenses affected include nurses, lawyers, and teachers. In 2018, Colorado adopted a resolution that recognized that “Dreamers” losing their work authorization would have far-reaching job-loss consequences for all Americans.
- In-State Tuition. Sixteen states and the District of Columbia offer in-state tuition to unauthorized immigrant students by state legislative action and seven states by state university systems. In 2020, Virginia became the latest state to offer in-state tuition.
- Health Care. DACA recipients are ineligible for most forms of federal government health care assistance including the Children’s Health Insurance Program, Medicaid, and tax credits under the Affordable Care Act. Some states, such as California, Illinois, Massachusetts, New York, Oregon, Washington state and Washington, D.C., have opted to fund health insurance to all children regardless of immigration status.
Possible Next Steps
DHS can determine what happens to current DACA recipients and the timetable. Previous efforts have included a proposal to “wind down” the program or to include DACA in legislation that also addresses immigration enforcement.
Congress: The U.S. House of Representatives passed the American Dream and Promise Act of 2019 (H.R. 6) on June 4, 2019. H.R. 6 would allow DACA recipients to gain lawful permanent residence. It has not been considered in the Senate, where opponents see legalization as "amnesty".
Public Perception: Polls show that between 66% (National Public Radio) to nearly 85% (Gallup) of Americans support granting permanent legal status to unauthorized immigrant children. Politico reported on June 17, 2020, that “wide swaths of registered voters support Dreamers regardless of gender, education, income, ethnicity, religion and ideology.”
During the COVID-19 pandemic, DACA recipients have been filling key workforce needs. According to Department of Labor statistics, 29,000 are healthcare workers including 3,400 registered nurses; nearly 15,000 are teachers; and over 142,000 work in farming, food manufacturing, wholesale food distribution, and the restaurant industry combined.