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The U.S. Supreme Court Saves DACA, For Now

On June 18, 2020, the United States Supreme Court decided to stop the United States Government from repealing Deferred Action for Childhood Arrivals ("DACA"). It was a narrow decision, allowing the United States Government an opportunity to issue a new basis to end the DACA program. However, such new basis, to pass judicial scrutiny, must consider all of the different options and interests not considered in the United States Government's initial, and now reversed, decision to cancel the program. Chief Justice John Roberts, writing for the United States Supreme Court, summarizes the problem as follows:

"The DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an ‘action [that] provides a focus for judicial review.’ Id., at 832… But, because DHS was ‘not writing on a blank slate,’ post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns…The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA…We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients... That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew."

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