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Federal Court: Trump Can't Discontinue DACA (Yet)

By Christopher Coble, Esq. on November 08, 2018 | Last updated on March 21, 2019

President Donald Trump's antipathy to immigration is matched only by his disdain for his predecessor's executive orders. Deferred Action for Childhood Arrivals, or DACA, was established under former President Barack Obama, allowing some individuals brought into the United States as children to be eligible for work programs and shielded from deportation, and has long been targeted by Trump.

But those efforts suffered another setback today, as the Ninth Circuit Court of Appeals ruled that the Trump administration must continue the program, calling its attempts to rescind DACA "arbitrary and capricious under settled law."

Cruelty vs. Contributions

"It is no hyperbole to say that Dulce Garcia embodies the American dream," began Judge Kim Wardlaw, recounting the tale of an attorney with a thriving law practice in San Diego who was brought to the country as a 4-year-old. "Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions."

In fact, for immigrants to be eligible for protection under DACA, they must:

  • Have entered the U.S. before their 16th birthday and prior to June 2007;
  • Be currently in school, a high school graduate or be honorably discharged from the military;
  • Be under the age of 31 as of June 15, 2012; and
  • Not have been convicted of a felony, significant misdemeanor or three other misdemeanors, or otherwise pose a threat to national security.

And even then, approval of an application is not guaranteed. DACA, as currently constructed, does not provide permanent lawful status, a path to citizenship, or make recipients eligible for federal welfare or student aid. DACA applications must also be renewed every 2 years.

Rights vs. Reasons

Interestingly, the court did not say that the Trump administration couldn't rescind DACA, only that its legal reasoning wasn't sound. "To be clear: we do not hold that DACA could not be rescinded as an exercise of executive branch discretion," Wardlaw wrote. "We hold only that here, where the executive did not make a discretionary choice to end DACA -- but rather acted based on an erroneous view of what the law required -- the rescission was arbitrary and capricious under settled law." So DACA's future remains uncertain, though this case is almost certainly headed to the Supreme Court.

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