by Sarah Betancourt

via CommonWealth Magazine

Estefany Pineda, DACA recipient and University of Massachusetts-Boston student, during a protest with the Student Immigrant Movement.

IN A MAJOR SETBACK for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported.

The 5-4 ruling allows the immigrants, who were brought to the US as children and are known as DREAMers, to maintain their legal status, at least for the time being. The decision, written by Chief Justice John Roberts, said the Trump administration’s move was “arbitrary and capricious” and failed to adhere to procedures required by administrative federal law. Roberts was joined in the decision by the court’s four liberal justices, while the four most reliable conservatives dissented.

The Deferred Action for Childhood Arrivals, or DACA, program was launched by President Obama in 2012 through executive action. It provides law-abiding beneficiaries that fit certain parameters (like being present in the US before 2007) with provisional rights like driver’s licenses, work permits, and the ability to go to college. It was rescinded by former attorney general Jeff Sessions in August 2017, who wrote at the time that the program was an “unconstitutional exercise of authority by the Executive Branch.”

But the court’s decision, upholding the rulings of three federal appeals courts, said the Trump administration failed to consider the impact of its DACA decision on those who had come to rely on the program for employment and protection from deportation.

“We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action,” wrote Roberts. “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 DACA case marks the second time the Trump administration has lost an administrative law case, the first of which involved the US Census.

Trump responded to the decision on Twitter by retweeting a screenshot of Justice Clarence Thomas’s dissent, saying, “Do you get the impression that the Supreme Court doesn’t like me?” He also attempted to turn the ruling to his political advantage, tweeting out that “we need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

The program’s specifications were remanded back to the Department of Homeland Security to be “considered anew,” which means, for now, the Supreme Court’s decision applies only to current DACA recipients.

Since 2017, current recipients are allowed to renew their status, which is adjudicated by the US Citizenship and Immigration Services agency on a case by case basis. No new applicants have been accepted since late 2017, and advocates said a total of 1.5 million people could be eligible or benefit from the program. For some DACA recipients who were unable to successfully renew in the past three years, issues like losing health insurance and employment had arisen, since a Social Security number is required for that.

The Department of Homeland Security and US Citizenship and Immigration Services, which adjudicates DACA renewals, did not respond to requests for comment. Ken Cuccinelli, the acting deputy secretary of Homeland Security, condemned the decision in a series of tweets, saying Obama made up “laws” on sticky notes. “We need more good justices,” he tweeted.

Sociologist Roberto Gonzalez, considered by many to be the preeminent scholar on DACA, has studied the program for its duration, surveying thousands of recipients of how the benefits have impacted their lives.

“This decision puts the ball back into the court of the Trump administration,” he said after reviewing the decision Thursday. “While I don’t suspect they will try to move on terminating it any time soon, I don’t think they will expand the program to allow for new applications. Those who have DACA will keep it for the time being. But I don’t think there will be new opportunities to acquire DACA. This would also hinge on what Congress decides to do with respect to a more permanent solution.

The day Estefany Pineda started school at the University of Massachusetts Boston in 2017, the Trump administration announced it was rescinding DACA, which she took advantage of in 2016.

Pineda came to the United States from El Salvador when she was nine after a gang threatened her and her sisters. She and her sisters left in the middle of the night, traveled for three weeks, and met her mother in the US, who had immigrated when she was three.

Pineda pays around $500 every two years to re-apply for DACA status. She has been awaiting the Supreme Court’s decision for months. “I am so happy that they chose to rule in our favor, in favor of Dreamers. I am not a crier and I immediately cried once I saw the decision,” she said.

As Pineda begins her senior year, she said a lot was at stake for her – whether she would retain access to in-state tuition and whether she could get a job after graduation.

Pamela Portocarrero came to the US when she was 10 from Peru, and had concerns over what the end of the program would mean for her; her husband, who is also a DACA recipient; and her recently born daughter, who is a US citizen.

“I’m glad this allows the program to continue, that I get the opportunity to continue to work, to live in this country, which is my home, and to remain with my family and people I care about,” she said.

Portocarrero credits the program for allowing her to be able to finish her bachelor’s degree in political science and international relations at the University of Utah in 2014. It took her seven years to get her degree, juggling work and school. Once she obtained a Social Security number, she was able to get a more secure job and finish her last few semesters all at once.

She moved to Boston with her family in 2018 and said being a DACA recipient allows her to keep her job working at a local university.

Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, commended the court and said “President Trump and his administration’s decision to abandon the DACA program was a political one, not a legal one.”

Attorney General Maura Healey joined one of several lawsuits defending the program, which was later consolidated into a single case resulting in today’s decision. Healey released a statement on Thursday with Oregon Attorney General Ellen Rosenblum, who co-chairs the Democratic Attorneys General Association with her, calling the ruling a “win for democracy.”

Healey said Massachusetts is home to more than 1 million immigrants, including nearly 20,000 DACA-eligible residents, most of whom haven’t had to apply for the program since it was shutdown.

“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”

Pineda agreed with Ardalan, saying that while the Supreme Court decision is a big win, she is hoping for more. “We have no path to citizenship as DACA recipients, so we are stuck,” she said.

Congress also has the DREAM and Promise Act to consider, which would create a pathway to citizenship for the hundreds of thousands of young immigrants living their lives in two-year increments.

Portocarrero said she is hopeful Congress will act. Otherwise, she said, her life in the US continues to have “an expiration date, and living like that is always worrisome.”

Filed in: In the News, Legal & Policy Work

Tags: DACA, Harvard Immigration and Refugee Clinical Program, HIRC, Supreme Court

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