As we continue to monitor the situation regarding the future of the DACA program, below are some key talking points about the Supreme Court’s recent decision to decline to hear the DACA case without first being heard by the lower courts.

• The U.S. Supreme Court on Monday declined to hear the Trump administration’s appeal of a federal judge’s ruling that requires the government to keep the Deferred Action for Childhood Arrivals program open for renewals.
• Under lower court orders that remain in effect, the Department of Homeland Security must continue to accept applications from the roughly 700,000 young people who are currently enrolled in the program, known as DACA, as well as individuals whose DACA grant has expired.
• The lower court’s decision does not allow Dreamers to apply for DACA if they have never before applied for the initiative, including Dreamers who are aging into eligibility, couldn’t afford the filing fees, or are newly eligible for the initiative. These Dreamers remain at risk of deportation, as do the DACA recipients whose protections have expired while they wait for USCIS to process their renewal applications.
• In a brief order, the court said simply, “It is assumed the court of appeals will act expeditiously to decide this case.”
• While Monday’s denial gives Dreamers a breath of relief while the case works its way through lower courts, Congress must still act immediately to pass the Dream Act.
• Congress needs to stop kicking the can down the road and move forward on the Dream Act now.
• A bipartisan Dream Act was first introduced in 2001. It is shocking that nearly 20 years later, while Dreamers are still making America a better and stronger nation, Congress has not found the courage to provide them with protection from deportation, and secure for them the promise of a better life as Americans.
• Dreamers across the country deserve the certainty that only permanent legislative protections can bring.
• While some thought the Supreme Court would take up the case, in practice, the justices rarely accept appeals asking them to bypass the lower courts if there is no split in view among the circuits. The justices rejected the Trump Administration’s effort to bypass the lower courts.
• DACA allows children of undocumented immigrants, known as Dreamers, to remain here if they were under 16 when their parents brought them to the U.S. and if they arrived by 2007. DACA recipients can renew their applications every two years.
• Monday’s action by the Supreme Court leaves the DACA challenge pending, expected to be taken up by the 2nd and 9th Circuit courts.
• Truly, Congressional action, and a permanent fix for Dreamers is the only solution that makes sense both pragmatically and morally.

BACKGROUND ON THE CASE IN QUESTION

• On Jan. 9, a federal judge in San Francisco, William Alsup, ruled in favor of the University of California and its president, former Homeland Security secretary Janet Napolitano. They sued to keep the program going after the Trump administration said in September that it would end it within six months. Alsup said Attorney General Jeff Sessions had wrongly concluded that DACA was put in place without proper legal authority.
• The Justice Department immediately said it would contest that ruling before the 9th Circuit Court of Appeals in California. But government lawyers also asked the Supreme Court to take the highly unusual step of agreeing to hear the case, bypassing the appeals court.
• The Supreme Court has agreed only about a dozen times in the past century to immediately take a case and bypass the federal appeals courts, and those case usually involve a national emergency, such as nationwide strikes in the steel and coal industries.
• In asking the court to take the case, the Justice Department took another unusual step in declining to ask the justices to block the lower court order in the meantime, which would have allowed the government to shut DACA down as planned. Such a start-and-stop approach, the government said, would frustrate the goal of winding the program down in an orderly way.

AILA Doc. No. 18022632