By Jen Riddle
The U.S. Citizenship and Immigration Service (USCIS) had planned to begin accepting applications for the expanded Deferred Action for Childhood Arrivals (DACA) program on February 18, 2015. Unfortunately, DHS has temporarily delayed the launch of expanded DACA due to a federal court decision temporarily halting its implementation. The court’s injunction also temporarily blocked implementation of the new Deferred Action for Parents of Americans (DAPA) program that was slated to begin this May. While the federal government has announced it will challenge the court’s ruling before the Fifth Circuit Court of Appeals, we do not yet know what form this challenge will take or how long we will have to wait for a decision. The Department of Justice, legal scholars, and immigration experts believe that the federal government had the legal authority to expand DACA and create DAPA through executive action and anticipate that the courts will ultimately uphold the legality of both programs. In the meantime, what does this mean for your clients who were gearing up to apply for expanded DACA or DAPA and what can you tell them?
What is the lawsuit about?
The lawsuit, State of Texas, et al v. United States, was filed in December 2014 by 26 states and challenged two aspects of the immigration initiatives that President Obama announced on November 20, 2014. Specifically, the states alleged that the expanded DACA and DAPA programs were created in violation of the law and will cause economic injury to the states that must finance the education, protection, and issuance of driver’s licenses to future recipients of deferred action under these programs.
What was the federal court’s decision?
On February 16, 2014, the federal district court in Brownsville, Texas issued a preliminary injunction temporarily blocking the expansion of DACA and the implementation of DAPA. The ruling did not find that these programs may be unconstitutional. Rather, the judge’s narrow holding found that the federal government might have violated procedural requirements under the Administrative Procedure Act by not using formal rulemaking procedures in creating these initiatives.
How did the Department of Homeland Security respond to the injunction?
On February 17, 2015, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a statement expressing his disagreement with the temporary injunction and confirming the Department of Justice’s intention to challenge the decision. In the meantime, in order to comply with the injunction, DHS announced that it would not begin accepting applications for expanded DACA on February 18, as originally planned. DHS also indicated that it would temporarily suspend plans to accept DAPA requests until a court confirms that these programs are within the legal authority of the federal government.
Does the injunction impact all executive actions on immigration announced by the President on November 20, 2014?
No, the injunction only impacts DAPA and expanded DACA. It does not block any other changes to immigration policies announced by the President last November and laid out through various DHS memoranda. For example, plans to expand the use of provisional waivers of unlawful presence and the existing “parole in place” program for family members of the U.S. Armed Forces, issue guidance clarifying advance parole, and replace Secure Communities with the Prioritized Enforcement Program are unaffected by the court case. Likewise, the lawsuit does not impact the new immigration enforcement priorities that went into effect on January 5, 2015.
How soon can we expect a court to reverse the injunction and permit DHS to launch expanded DACA and resume preparations for DAPA?
This will depend on whether the federal government files an emergency motion with the Fifth Circuit to stay the temporary injunction or decides to file an appeal instead. If the Department of Justice (DOJ) files an emergency motion to stay, a decision could be issued within a few weeks. That would allow the expanded DACA and DAPA programs to move ahead while the district court decides the case on its merits. If DOJ decides to await a district court decision on the merits and then appeal the decision to the Fifth Circuit, it could take several months for a decision.
How does the injunction impact clients who want to apply for DACA?
The temporary injunction does not affect the original DACA program that was created in 2012. Anyone who meets the program’s criteria established in 2012 may continue to apply – both first-time applicants as well as DACA recipients who seek to renew their deferred action and employment authorization. However, clients who were hoping to apply for DACA under the expanded criteria announced on November 20, 2014 are not yet eligible to apply. However, USCIS has stated its intention to begin accepting applications for expanded DACA as soon as the courts issue a favorable decision allowing for the program’s implementation. Continue to check CLINIC’s website and the USCIS website for updates.
How should I advise clients who already have DACA and want to renew?
Clients granted DACA under the program’s 2012 criteria may continue to renew their deferred action and employment authorization using Form I-821D. Beginning November 20, 2014, USCIS began granting DACA and work permits to initial and renewal applicants in three-year increments. DACA recipients already granted three-year work permits may continue to use them. However, following the injunction, USCIS will revert to issuing two-year grants of deferred action and work authorization until a court overturns the decision.
What should I advise clients who want to apply for expanded DACA?
Clients who qualify for expanded DACAshould continue to gather documents necessary to show they meet the DACA criteria and save money for the $465 application fee. As soon as a court decision permits USCIS to launch the expanded DACA program, clients may apply. Remember that USCIS will be releasing a new Form I-821D that reflects the November 20, 2014 changes to DACA eligibility. While there will likely be a grace period during which the old I-821D will be accepted, you may want to hold off on completing the application form until USCIS releases the new one. You may have heard that USCIS published revised Frequently Asked Questions and updated I-821D instructions on February 11, 2015 in anticipation of its plans to begin accepting applications for expanded DACA on February 18. Following issuance of the injunction this week, these two sets of guidance were removed from the USCIS website. For now, the previous FAQs and instructions remain in effect.
It is also important to understand that the injunction did not affect the November 20, 2014 DHS Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants that reflects which groups of individuals U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and USCIS considers to be priorities for immigration enforcement. The new Enforcement Priorities Memo went into effect on January 5, 2015 and remains in full force. If any DHS official seeks to detain, place into removal proceedings, deport, or take any other enforcement action against a prospective DACA client who does not fall into one of these priorities, you should request an appropriate exercise of prosecutorial discretion in your client’s favor. ICE and CBP should continue to identify individuals who might qualify for expanded DACA and refrain from taking enforcement actions against them. Also, remember that clients may still request deferred action, more generally, under the process that has existed before DACA was created by submitting a request to the local USCIS office.
What should I advise clients who want to apply for DAPA?
Clients who may be eligible for DAPA should continue to gather documents necessary to show they meet the DAPA criteria and save money for the $465 application fee. The federal government anticipates that the court will ultimately uphold the legality of the DAPA program and DHS will continue to prepare for a timely implementation of DAPA as soon as that happens. Depending on how long it takes for the injunction to be overturned by the district court or a higher court, DAPA may or may not be able to launch in May of 2015 as originally planned. However, clients should be prepared to file their applications as soon as the time comes. As discussed above, individuals who appear to be eligible for DAPA remain non-priorities for immigration enforcement, and should not be detained, placed into removal proceedings, or deported by DHS. Make sure that your clients understand the new enforcement priorities and are prepared to request prosecutorial discretion from ICE or CBP if they are apprehended.