On Friday, the Supreme Court decided it will hear the challenge to the Trump administration Department of Homeland Security’s decision to shut down the Deferred Action for Childhood Arrivals (DACA).

The Obama administration established DACA in 2012. The program permitted illegal immigrants who immigrated to the United States as children to stay in the country without being deported and gave them leave to work in the United States. The roughly 800,000 children who are now young adults would be eligible for deportation now as the result of the Trump administration’s 2017 decision to terminate the program. In 2018, three courts blocked the federal government from terminating the program.

In November 2018, the Trump administration filed a petition with the Supreme Court that asked two questions: “Whether DHS’s decision to wind down the DACA policy is judicially reviewable” and “Whether DHS’s decision to wind down the DACA policy is lawful.” The petition stated:

In 2012, DHS announced the policy known as Deferred Action for Childhood Arrivals (DACA) … Under DHS regulations, aliens granted deferred action may apply for and receive work authorization for the duration of the deferred-action grant if they establish economic necessity. A grant of deferred action does not confer lawful immigration status or provide any defense to removal. DHS retains discretion to revoke deferred action unilaterally, and the alien remains removable at any time.

DACA made deferred action available to “certain young people who were brought to this country as children.” The INA does not provide any exemptions or special relief from removal for such individuals. And, dating back to at least 2001, bipartisan efforts to provide such relief legislatively had failed. Under the DACA policy, following successful completion of a back- ground check and other review, an alien would receive deferred action for a period of two years, subject to renewal. The policy made clear that it “confer[red] no substantive right, immigration status or pathway to citizenship,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.”

Only days after the petition from the Trump administration, the U.S. Court of Appeals for the 9th circuit ruled that the DACA program could not be terminated. As Amy Howe writes at SCOTUSblog, “The court of appeals upheld the district court’s order requiring the Trump administration to keep the DACA program in place.”

The court stated, “… the government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch. With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose ‘province and duty’ it is ‘to say what the law is.’ The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief.”

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