DACA Updates, and a Caveat: D.C. Federal Judge Orders Full Restoration of DACA, with 20-Day Delay

This week marks eleven months since the Trump administration announced the cancellation of the Deferred Action for Childhood Arrivals (DACA) program. However, the fate of DREAMers remains just as uncertain as that day in September when the program benefitting an estimated 800,000 was rescinded.

Just this past Friday, August 3, 2018, a U.S. District Court in Washington, D.C., reaffirmed its April 24^th decision in NAACP v. Trump and ordered the full restoration of the DACA program, giving the U.S. Department of Homeland Security (DHS) 20 days to appeal the decision and seek a stay pending appeal.

The D.C. court held previously, on April 24, 2018, that DHS’s September 2017 decision to end the DACA program was “arbitrary and capricious” and gave the government 90 days to issue a new memo terminating DACA or to explain coherently its decision to end DACA, else the DACA program be reinstated fully. Although the court is now giving the government yet another 20 days to come up with a “coherent explanation of its legal opinion” or to “reissue[e] its decision for bona fide policy reasons that would preclude judicial review,” the court has made it clear in this last decision that DHS will not be given another chance to “remedy these deficiencies.”

At present, U.S. Citizenship and Immigration Services (USCIS) is only accepting applications for persons who had DACA prior to DHS’s September 5, 2017, rescission of the program. (Huge thanks to the multiple lawsuits filed against the government across the country which have challenged the termination of DACA and led to the partial restoration of DACA for the time being.)

What Friday’s decision means is that, if the government fails to provide a sound basis for the termination of the DACA program by August 23, 2018, then USCIS will again be required to accept all DACA applications for consideration – initial and renewal – from eligible applicants.

On the other hand, if the government does appeal this August 3^rd decision and puts forth a “coherent explanation of its legal opinion,” or if the government issues a new DACA-rescission memo “for bona fide policy reasons,” either of these actions could, in effect, cancel out the D.C. District Judge’s decision to restore DACA in full. In this scenario, USCIS would not be required to resume accepting DACA applications from first-time applicants. Nevertheless, in either scenario, USCIS would still be required to accept and process DACA renewal applications until an appellate court determines otherwise or until the issue makes its way to the eyes and ears of the U.S. Supreme Court. (Another huge thanks to the nationwide injunctions issued in the Northern District of California and the Eastern District of New York earlier this year.)

Besides these cases challenging the termination of the DACA program, there is another case pending in the Southern District of Texas, Texas v. Nielsen, which was filed in opposition to the 2012 creation of the DACA program and the lawfulness of the program itself. The Texas case is set for a preliminary injunction hearing on Wednesday, August 8, of this week; and a decision by the Texas court to order USCIS to stop accepting DACA applications altogether could possibly, eventually result in USCIS not accepting any DACA applications, even for renewals.

Because the fate of the DACA program remains uncertain, and because any number of scenarios and timeframes are possible, all persons eligible for DACA are encouraged to consult with an experienced immigration attorney and submit their renewal applications as soon as possible.

As a reminder, to be eligible for DACA, an applicant must:

• Have been under the age of 31 as of June 15, 2012;
• Have come to the United States before the age of 16;
• Have continuously resided in the United States since June 15, 2007, to the present time;
• Have been physically present in the United States on June 15, 2012, as well as at the time of applying for DACA;
• Have had no lawful status in the United States on June 15, 2012;
• Be currently enrolled in school, have graduated or obtained a certificate of completion for high school, have obtained a general education development (GED) certificate, or have been honorably discharged from the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and not otherwise pose a threat to national security or public safety.

If you have questions about your eligibility to apply for or renew your DACA, or if you would like a review of your immigration options, please contact Joseph & Hall P.C. at (303) 297-9171 to schedule a consultation with one of our experienced attorneys. If you are already a client of Joseph & Hall P.C. and have questions about your case, please contact your attorney to discuss your particular case.