U.S. Law Center

DACA still exists despite congressional impasse

If you are one of the California enrollees in the Deferred Action for Childhood Arrivals Program, you probably know that DACA did not expire in March as it was scheduled to do. You may, however, be unclear as to the current status of this program and how worried you should be about your immigration status relative to the possibility of your being arrested by Immigration and Customs Enforcement officials.

Given the extraordinary number of undocumented immigrants deported so far this year, particularly from California, your fears are well-founded. Nevertheless, as a DACA enrollee, you are relatively safe, at least for the rest of this year.

Congressional impasse

You may have followed along as the DACA debate raged in Congress from December 2017 through March 2018. With DACA set to expire at the end of March, the debate got so strident and so out of hand that the government actually partially shut down for four days in January. Democrats insisted on a DACA-only bill while Republicans insisted just as firmly on a more comprehensive bill that included not only a DACA extension, but also more border security and immigration enforcement.

Supreme Court involvement

With Congress at an obvious stalemate and time running out for the DACA program, our state and several of our cities and universities sued the Department of Justice in the 9th Circuit Court of Appeals. One of the things we asked for was that the judge extend the DACA program. He did so, but the DOJ immediately filed an appeal to the U.S. Supreme Court. SCOTUS, however, refused to hear the case on Feb. 28, 2018. Consequently, the 9th Circuit’s ruling remains in place and DACA is still valid.

The Supreme Court’s refusal to hear this case, however, does not extend DACA forever. In fact, SCOTUS did not even address DACA in its refusal. Rather, it said that the DOJ had erred in appealing directly to the Supreme Court and should have gone through the “proper judicial channels” instead. This leaves the DOJ free to re-file its appeal elsewhere and let it wend its way “naturally” back to the Supreme Court.

Assuming this is what happens, SCOTUS likely will not hear this case until well after its new term begins in October, assuming it agrees to hear it at all. Thus DACA and its enrollees, including you and over 700,000 others, appear to be safe for at least the next 8-10 months.

New York’s lawsuit

In the meantime, New York filed a similar lawsuit in the 2nd Circuit Court of Appeals. This court, too, ruled that DACA must continue beyond its scheduled expiration date. Some Supreme Court watchers speculate that SCOTUS may choose to consolidate the California and New York cases and hear them together next term. Others speculate that SCOTUS may prefer to stay out of the DACA hornet’s nest, at least until a new Congress convenes after the 2018 mid-term elections in November.

Uncertain future

At this point there is no way to predict DACA’s ultimate future. The thing you and other enrollees should remember, however, is that unless and until the Supreme Court actually does decide the DACA case, the 9th Circuit’s ruling remains the law of the land and the DACA program cannot expire.

It goes without saying that you must stay on top of your immigration status and remain current on everything DACA requires you to do to stay in the program. This is your best protection against ICE arrest and the possible beginning of deportation procedures.

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