WASHINGTON – President Donald Trump is venturing onto increasingly shaky legal ground as officials reject new applications for the Deferred Action for Childhood Arrivals program, sidestepping a Supreme Court ruling reinstating DACA, legal experts and lawmakers say.
The court ruled last month that the Trump administration hadn’t followed federal procedural law or justified terminating DACA in 2017, calling the rescission “arbitrary and capricious.”
DACA grants protection from deportation to so-called Dreamers brought to the U.S. as children. The Obama-era program, which has bipartisan support, has given temporary relief to 700,000 young immigrants.
The court did not decide on Trump’s executive authority to rescind DACA, and offered the administration a road map for how to try to end it for good.
The White House’s refusal to either act or restart the program sets up a potential showdown with the court with little precedent, said Muneer Ahmad, clinical professor at Yale Law School.
The White House declined to respond to requests for comment, and the Justice Department did not respond. But after the court ruled, Trump sought to reframe the defeat on immigration, his signature campaign issue, saying, “The Supreme Court asked us to resubmit, … nothing was lost or won.”
The administration did not file for a rehearing. But it has refused to process new applications, advocates and lawmakers say, despite widespread legal consensus that slow-rolling the restarting of the program violates the court’s order.
On Tuesday, Sens. Kamala Harris, D-Calif., and Dick Durbin, D-Ill., and 31 other senators wrote to the acting Homeland Security secretary demanding the department “fully reinstate DACA protections, as the Court’s decision unequivocally requires.”
The Citizenship and Immigration Services agency — which administers DACA — has rejected new applications, or confirmed receipt but then not acted on them, lawyers said. Jaclyn Kelley-Widmer, associate clinical professor of law at Cornell law school, said USCIS is sending notices saying the agency is “not accepting initial filings.”
The Trump administration has repeatedly sought an end run around Congress with immigration orders. In 2017, then-Attorney General Jeff Sessions declared DACA unconstitutional, and lower courts issued orders that froze the program while the administration appealed to the Supreme Court.
The administration was required to renew existing DACA cases, but has blocked tens of thousands from applying who became eligible once they turned 15.
In a statement published the day after the ruling, USCIS deputy director for policy Joseph Edlow said that the decision “merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”
In early July, Democratic senators wrote to Ken Cuccinelli, the acting deputy Homeland Security secretary, demanding USCIS take down the statement from its website, including the “egregiously false claim” that the Supreme Court ruling “ ‘has no basis in law.’ ”
Cuccinelli has not responded, said Maria McElwain, a spokeswoman for Sen. Richard Blumenthal, D-Conn., one of the letter’s authors. “We should not need to tell you that defying the Supreme Court is completely unacceptable,” the senators wrote.