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The Supreme Court may have just kept DACA on life support for several more months

The Court refused to bend the rules for Trump by hearing a DACA case early.

U.S. Supreme Court Hears Challenge To Obama Immigration Programs Alex Wong/Getty Images

The judicial battle over the Trump administration’s efforts to wind down the Deferred Action for Childhood Arrivals (DACA) program, which protected 690,000 young unauthorized immigrants from deportation, has just been extended by several months.

On Monday, the Supreme Court rejected a highly unusual request from the Trump administration: to skip over the second level of the federal court process (the courts of appeals) by having the Supreme Court consider an order made in January by a California district court judge.

The January order partially reanimated the DACA program, which the Trump administration began winding down in September 2017 (with the expectation that work permits issued under the program would start expiring in large numbers on March 5 of this year).

Immigrants who have work permits under DACA (or whose work permits recently expired) are currently eligible to apply for renewals under the order. The Trump administration is trying to get that order overturned, so that it doesn’t have to renew anyone’s work permits while the case over the constitutionality of ending DACA works its way through the courts.

By rejecting the administration’s request, the Supreme Court isn’t saying anything about the merits of the DACA program itself, or about the legal arguments over the Trump administration’s decision to end it. It’s just insisting that the case proceed the normal way, with the Ninth Circuit Court of Appeals hearing the administration’s appeal of the California judge’s order (and the Second Circuit Court of Appeals on the East Coast hearing an appeal of a similar order issued in February by a New York judge).

That process is likely to take months — and it’s extremely unlikely that both appeals courts (both of which are fairly liberal and have consistently ruled against the Trump administration on immigration issues) are going to side with the administration. That means that renewals will likely remain open at least until the Supreme Court agrees to take up the cases after the appeals courts rule — which will almost certainly be during the Court’s next term, which starts in October of this year.

In theory, by that point, Congress may have passed a bill to provide a longer-term solution for the status of DACA recipients and other unauthorized immigrants who came to the US as children (including those who meet the criteria for DACA but didn’t apply before September 5, 2017; even under the federal court orders, no one can apply for DACA for the first time).

On the other hand, it’s possible that Congress could point to the now-prolonged court fight as yet another reason it’s not urgent for them to act.

The court fight over DACA is keeping the program on life support — but it won’t save it for good

On September 5, the Trump administration announced that it was ending DACA. The administration immediately stopped accepting new applications for two-year deportation protections and work permits. DACA recipients whose work permits were set to expire before March 5, 2018 were given a month to apply for one last two-year renewal. And immigrants whose work permits were set to expire after March 5 were given no chance to renew at all — the expiration date on the work permit they held would mark the last day they were able to work legally, and live without fear, in the United States.

(Because not everyone who was eligible for renewals applied in time, an average of 122 immigrants are losing DACA protections each day right now; on March 5, that number is estimated to climb to over 400 a day, and around August 2018, it would climb to over 1,000 a day.)

Several different lawsuits got filed over the end of DACA, arguing that the Trump administration had acted illegally in winding down the program. In one of those — filed by the University of California — federal judge William Alsup ruled in January that there was evidence to suggest that the administration had in fact violated the law, by not going through a standard deliberative process or doing enough to consider the costs of ending DACA. Therefore, he said, he was going to put the rollback of the program on hold while he considered the legal questions more fully.

Here’s the way the process is supposed to go from there: the Trump administration would appeal the judge’s ruling to the 9th Circuit Court of Appeals, then, if the 9th Circuit sided with the judge and against the administration (as is likely, given the 9th Circuit’s track record), take that appeal to the Supreme Court. Here’s the way the process actually went: the Trump administration asked the Supreme Court to let them skip the 9th Circuit.

The Department of Justice’s ostensible reason was that the question of ending DACA was so important that it couldn’t be dragged out (though, weirdly, the Trump administration didn’t ask the Supreme Court to immediately put a hold on Judge Alsup’s ruling).

It’s also possible that the administration’s disdain for the “liberal 9th Circuit,” rooted in the meme that the Supreme Court routinely smacks down liberal decisions made by the West Coast court, led it to figure that the Supreme Court might be okay with bending the rules if it meant cutting the 9th Circuit out.

In the meantime, a New York judge issued a similar ruling to Judge Alsup’s — meaning that even if the 9th Circuit were to somehow side with Trump, it wouldn’t change anything about what the administration could do. The Department of Justice now has two different rulings it has to overturn to get its way — whether in the 2nd and 9th Circuit Courts, or at the Supreme Court level after one of those circuit courts rules.

But the administration’s repeated legal setbacks don’t mean that DACA is going to last. For one thing, the program is already living in a weird, zombified form. For another thing, the legal arguments against the administration that the judges have relied on haven’t been about whether it was legal to end DACA at all — they’ve been about whether the administration went about it the right way.

Even in a worst-case scenario for the administration, in which even the Supreme Court (which has granted the administration much more leeway on immigration policy than the 2nd and 9th Circuits) rules that the administration acted too hastily in killing DACA, it probably wouldn’t prevent the administration from going through a slower, more deliberative process and achieving the same result.

What this means for DACA recipients

Here’s how DACA is working right now:

  • Approximately 122 immigrants each day, since October, have had their DACA-issued work permits expire because they were unable to apply in time for renewals (after the Trump administration suddenly shortened the application window in September). That’ll add up to about 22,000 immigrants by the time we get to March 5.
  • Approximately 668,000 immigrants have work permits issued under DACA that won’t expire until March 5 or later.
  • Both of these groups of immigrants — as well as immigrants whose DACA expired between September 5, 2016, and September 5, 2017 — can apply for a two-year renewal (thanks to the court order issued in January). An unknown number of them have already applied.
  • USCIS has started approving renewal applications and sending out two-year work permits to DACA recipients who applied after the renewal window opened in January. But we don’t know how many of those applications have been approved, or how long USCIS is taking to process applications. Even when DACA was in full swing, USCIS recommended that applicants give them 90 to 120 days to process a renewal application. So it is likely that some DACA recipients are watching their work permits expire while their renewals wait in the processing queue.
  • Immigrants whose existing DACA permits have expired haven’t been rounded up en masse by ICE. However, some have been turned over to ICE agents and put in deportation proceedings.

Here’s what will happen after March 5:

  • An average of 425 immigrants are currently set to lose their work permits each day from March 5 to March 31, in the absence of USCIS sending out any renewals. That pace will rocket up to over 1,000 a day starting in August. But ...
  • Any immigrant worried about the loss of her work permit will be able to apply for a two-year renewal, at least until the court order issued in January is struck down. Some of them have already done so.
  • Because it’s not yet clear how long USCIS is taking to process DACA renewals, it’s not clear how much risk DACA recipients run of losing their existing work permits while they wait for the new ones to come in. If USCIS is working quickly to send out renewed work permits before March 5, it will probably reduce the number of people losing their work permits each day by some amount; it’s more likely, given processing time, that the pace of people losing DACA will stay at its projected pace through April, and would then slow as USCIS starts sending new work permits to renewal applicants.
  • The lion’s share of DACA recipients will still be safe for several more months. As many as 622,000 immigrants have work permits issued under DACA that won’t expire until August 1 or later. At this pace, it would take until February 2019 for more than half of DACA recipients to lose their protections — and that pace doesn’t reflect any of the renewals that could be issued under the court order.
  • The Trump administration has said clearly that ICE won’t actively target people whose DACA work permits have expired en masse. But it’s said just as clearly that if ICE agents happen to come across immigrants who have lost DACA protections, they’re just as vulnerable to arrest or deportation as anyone else.

Hundreds of thousands of immigrants have been in a state of uncertainty and anxiety since September 2017 — and even earlier, as DACA recipients wondered what President Trump would do to them. Congress still has the power to alleviate that uncertainty. But if it couldn’t do so without the impetus of a deadline, it may feel even less urgency without one.