Virginia, US

Nov 16 2020

District Court Invalidates DHS Memo Limiting DACA Program

United States

At a glance

  • This weekend, a federal district court paved the way for reinstatement of the original 2012 DACA program by invalidating a July 2020 Department of Homeland Security (DHS) memorandum that limited the program in a number of ways.
  • Under the court order, DHS must accept initial DACA applications as well as renewals, grant advance parole travel documents, and issue two-year renewals (instead of one-year) to DACA beneficiaries. DHS is expected to appeal the district court decision.
  • The court also certified a class of foreign nationals who can benefit from the ruling, including those who were issued limited DACA benefits and those who may have been eligible to apply for DACA protection but were prevented from doing so under the Trump Administration’s policies.
  • Current DACA beneficiaries may continue to work pursuant to their valid employment authorization documents and should apply to renew their benefits as soon as they are eligible to do so. Others should await agency instruction before filing for new benefits.

The issue

This weekend, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York invalidated the July 28, 2020 DHS memorandum that rolled back the DACA program by prohibiting new initial Deferred Action for Childhood Arrivals (DACA) applications, limiting renewals to one year, and prohibiting the grant of advance parole travel documents to DACA beneficiaries. The court ruling restores the DACA program, at least temporarily, to its original form as created in 2012. The cases are Batalla Vidal v. Wolf and State of New York v. Trump.

Judge Garaufis held that Chad Wolf was not lawfully appointed Secretary of the Department of Homeland Security (DHS) and thus did not have the legal authority to issue the July 28 agency memo. Judge Garaufis also certified a nationwide class, meaning that the court order will apply to all individuals who are or will be eligible for DACA based on the terms of the program that existed in 2012, except those who filed their own separate lawsuits challenging the Wolf memorandum.

The parties to the case are expected to confer with the court about next steps for affected foreign nationals, presumably including procedures for those seeking to apply for initial DACA benefits, those who received one-year extensions (as opposed to two-year extensions), or for advance parole. DHS is expected to appeal the district court decision to a higher court.

Background

Created in 2012, the DACA program offered deportation relief and employment authorization to certain undocumented immigrants brought to the country as children, also known as Dreamers.  

The Trump Administration announced its intention to terminate the DACA program in September 2017, but provided a six-month delay in order to give Congress time to develop a legislative solution. Congress failed to take action, and in the meantime, several lawsuits were brought challenging termination of the program. Pursuant to several federal court orders, USCIS was compelled to continue processing DACA renewal applications, including employment authorization documents (EADs), but was permitted to refuse new applications for DACA protection as well as applications for advance travel authorization – known as advance parole – from DACA beneficiaries.

In Fall 2019, the U.S. Supreme Court engaged in a consolidated review of three of the lawsuits challenging DACA’s termination. In mid-June, the Court ruled that the Trump Administration violated procedural requirements when it sought to terminate the DACA program in 2017 because it failed to provide an adequate justification, thus violating the Administrative Procedure Act (APA).  It held, however, that the agency had the legal authority to terminate the program if it did so properly.

On July 28, Acting Secretary Wolf reiterated the Trump Administration’s view that termination of DACA is warranted, but stated that a full rescission of the program requires more consideration. He ordered the agency to adjudicate some DACA applications as the agency decided how to properly terminate DACA, but with limitations on renewals, advance parole and initial applications described above. 

What the new ruling means for DACA beneficiaries and the DACA-eligible

This most recent court order paves the way for the DACA program to be restored fully in the near future; however, in practice, the program remains status quo until further notice. Current DACA beneficiaries may continue to rely on their valid employment authorization documents and continue to receive protection from deportation until further notice. Those with expiring EADs should submit their renewal applications as soon as they are eligible to do so.

Foreign nationals who wish to apply for initial DACA benefits and current DACA beneficiaries who seek permission to travel abroad should await further instruction from the agency and seek advice from immigration counsel as we await the government response to this weekend’s ruling.

What’s next for the DACA program

DHS is expected to appeal this weekend’s court decision and could still try to administratively terminate DACA before the Biden Administration is installed on January 20, 2021. The Biden Administration, however, has made clear that protection of DACA is an utmost priority within its initial days in office.

This alert is for information purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.