Following the September 5, 2017 issuance of a Department of Homeland Security (DHS) memorandum rescinding DACA, several lawsuits were filed challenging the legality of the DACA program’s termination. In addition, Texas and nine other states have asked a Texas district court to find that the 2012 DACA program is unlawful because the Obama administration exceeded its authority in creating the program. This advisory summarizes the current status of DACA in light of the pending litigation.
What is the status of the current DACA litigation?
Several courts have held that the rescission of DACA was likely unlawful and ordered U.S. Citizenship and Immigration Services (USCIS) to resume accepting DACA renewals:
- Regents of the University of California v. DHS – On January 9, 2018, the Northern District of California held that the plaintiffs are likely to succeed on the merits of their claim that the DACA termination decision was not made in accordance with the law. It ordered a nationwide preliminary injunction — a temporary order that remains in place for the duration of the lawsuit unless it is overturned by a higher court – halting the termination of the DACA program. The order restored the DACA program to the state it was in before its September 2017 rescission, except that it did not require USCIS to accept new initial DACA applications or to grant advance parole to any DACA recipients. Responding to the injunction, on January 13, 2018, USCIS resumed accepting DACA renewal applications from those who had previously received DACA. The injunction was upheld by the Ninth Circuit Court of Appeals on November 8, 2018.
- Batalla Vidal, et al. v. Nielsen, et al. – A second preliminary injunction was issued on February 13, 2018, by a federal judge in the Eastern District of New York. The nationwide order mirrors the preliminary injunction issued in the Regents case and requires USCIS to resume accepting DACA renewal applications from people who had previously been granted that relief. The government appealed and the Second Circuit Court of Appeals held oral arguments on January 25, 2019.
- NAACP, et al. v. Trump – On August 3, 2018, the District Court for the District of Columbia affirmed its earlier ruling that the government’s decision to rescind DACA was arbitrary and capricious and ordered that the original DACA program be fully restored. However, on August 17, 2018, the judge stayed part of his order pending the government’s appeal of his decision to the U.S. Court of Appeals for the D.C. Circuit. The D.C. circuit court heard oral arguments on February 22, 2019 and a decision is pending. As long as the stay remains in effect, USCIS is not required to re-open the DACA program to initial applicants or DACA recipients seeking advance parole.
- CASA de Maryland, et al. v. DHS, et al. – On March 5, 2018, a federal district court judge in Maryland departed from the courts in Regents, Batalla, and NAACP and ruled that the rescission of DACA was valid and constitutional. However, on May 17, 2019, the Fourth Circuit Court of Appeals concluded that the rescission of DACA was inadequately explained and was arbitrary and capricious in violation of the Administrative Procedures Act. Thus, it vacated the rescission. In doing so, the 4th Circuit joined the 9th Circuit as the second federal appellate court to find the decision to end DACA illegal. The government filed a petition for writ of certiorari to the U.S. Supreme Court on May 24, 2019.
In addition to these four lawsuits challenging DACA’s termination, a lawsuit pending in Texas challenges the legality of the initial creation of DACA:
- Texas, et al. v. Nielsen, et al. – On May 1, 2018, Texas and nine other states filed a lawsuit challenging the legality of the 2012 DACA program. In contrast to the other lawsuits that argue DHS’ attempt to end the DACA program was unlawful, the Texas case claims that the Obama administration never had the authority to create DACA to begin with. The plaintiffs requested a preliminary injunction, asking the judge to order USCIS to stop approving any DACA requests while the case continued. However, on August 31, 2018, the judge decided not to block the adjudication of DACA applications, including renewal requests, because the states had delayed in requesting this relief for six years and because halting the program immediately would harm the interests of DACA recipients. A trial has been set for May 2020 and a hearing on the plaintiffs’ motion for summary judgment will be held on October 28, 2019.
What are the possible outcomes of this litigation?
It is difficult to predict what will happen. The U.S. Supreme Court has been asked to make a final decision about the legality of the DACA program’s termination. On June 28, 2019, the Supreme Court agreed to review three of the above legal challenges - Regents, Batalla, and NAACP. Oral arguments are scheduled for November 12, 2019, and a decision is expected no later than June 2020.
Can individuals who have never held DACA apply now?
No. Under the nationwide injunctions currently in place, USCIS must accept applications only from individuals who were previously granted DACA. USCIS is not accepting first-time initial DACA requests from those who have never held DACA.
Can former DACA recipients whose deferred action expired more than a year ago apply?
Yes. Those whose deferred action expired more than one year ago, or was terminated at any time, may request DACA under the court orders but must apply as initial applicants and include the required supporting evidence. Those whose DACA expired one year ago or less may request DACA as renewal applicants and should follow the instructions for renewal requests. USCIS directs all applicants to include the date their DACA expired (or was terminated) in Part 1 of the Form I-821D.
Note that this “one-year filing window” is a change in policy that went into effect on August 1, 2019. The previous policy (from September 5, 2017 through July 31, 2019) was that those whose DACA expired on or after September 5, 2016 could apply as renewal applicants, but those whose DACA expired before September 5, 2016 had to file as initial applicants. See: https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction.
Which individuals with a current DACA grant may apply to renew?
Anyone who has previously held DACA and continues to meet the DACA eligibility requirements may apply under current USCIS policy complying with the federal court orders described above.
When should renewal requests be filed?
Given the uncertain future of the DACA landscape, CLINIC recommends that DACA recipients consider filing renewals without delay in the event that a future decision causes USCIS to stop accepting renewal requests. As mentioned above, the Supreme Court will hear oral arguments about the legality of the DACA termination on November 12, 2019, and a decision is expected no later than June 2020.
USCIS has been accepting renewal requests that are filed more than 150 days before expiration. That said, those who apply more than 150 days in advance run the risk of receiving an extension less than two full years. Some applicants have also reported renewal requests filed more than 150 days in advance being held for several months before being adjudicated. Ultimately, it is the decision of each DACA recipient to weigh these potential risks against the benefits of a DACA extension before deciding how early to apply or whether to apply at all.
What should I advise clients who want to apply to renew DACA?
It is unclear how long USCIS will continue to accept DACA renewal requests and whether it will continue to adjudicate pending renewal applications if one or more of the injunctions is overturned. Clients should be advised of the potential for losing their application fees if a court orders USCIS to change its current policy after an application is accepted but before it is adjudicated. The archived DACA FAQs state that, while USCIS will accept requests submitted earlier than 150 days before expiration, the deferred action period will likely be granted from the date of approval. In other words, filing earlier than 150 days out could result in an overlap between a current DACA grant and the renewal grant. This means that the new renewal period may extend for less than a full two years from the date that the applicant’s current DACA period expires. We recommend counseling potential DACA applicants about the risks of possible rejection if one of the injunctions is reversed, the loss of application fees if USCIS stops adjudications, or a shortened DACA grant for early filers if adjudication continues. Those who choose to move forward despite the risks should file as soon as possible.
Also note that USCIS will reject applications that are not filed using the current edition of the required forms. Currently, USCIS is accepting the 4/24/19 edition of Form I-821D. It stopped accepting older versions of the I-821D beginning July 12, 2019.
Will information about DACA requestors or recipients be shared with ICE for enforcement?
No changes have been announced to confidentiality policies described in the DACA rescission guidance posted by DHS on September 5, 2017. When an individual’s DACA grant expires, USCIS will not proactively share his or her personal information with ICE or CBP for immigration enforcement purposes unless the requestor meets the criteria in the 2011 guidance for issuance of a Notice to Appear. When USCIS denies a DACA request, it will not provide the requestor’s information to ICE or CBP unless it determines that he or she poses a risk to national security or public safety or meets the 2011 NTA guidance criteria. These policies were confirmed in the June 28, 2018 NTA policy memo. However, note that the DACA NTA guidance and confidentiality policies are subject to change at any time.
What enforcement risks will individuals face once their DACA expires?
Again, there have been no changes to current enforcement priorities as identified in a January 25, 2017 Executive Order and February 20, 2017 DHS memorandum. These broad priorities essentially include all undocumented individuals, although those with any prior involvement in the criminal justice system or prior removal orders are at greater risk of enforcement. That said, the DACA rescission FAQs do not reference the enforcement priorities, but provide that referrals for enforcement will be made according to the USCIS NTA guidance.
Remind DACA holders that DHS also reserves the right to terminate or revoke individual DACA grants, and those at greatest risk of termination include individuals convicted of a felony, significant misdemeanor, or three or more non-significant misdemeanors. DACA recipients who are suspected of or have been involved with gangs are also at risk of being considered a threat to national security or public safety and having their DACA grant terminated. The 2011 USCIS NTA guidance restricts issuance of an NTA or referral to ICE to cases that involve public safety threats, criminals, and aliens engaged in fraud. While there is some overlap between the grounds for termination and the 2011 NTA issuance criteria, they are not identical, so ICE could still issue an NTA if it receives information about a DACA recipient from a source other than USCIS.
Best practices for advocates:
Identify clients for eligibility. Review your caseload and contact those clients who are eligible to renew DACA, i.e. those who were previously granted DACA. Those whose DACA expired more than one year ago must file as initial applicants, while those with current DACA or whose DACA expired one year ago or less may apply as renewal applicants. Determine whether the volume of potential applicants is large enough to consider a workshop model or recruiting pro bono counsel to assist clients in submitting timely renewal applications. Prepare renewal requests promptly in light of the possibility that a U.S. Supreme Court decision were to require USCIS to cease accepting and adjudicating renewal applications.
Make sure DACA requests are properly completed before submitting. Ensure that renewal applications filed are not rejected. Forms should be fully completed as advised by USCIS (they must include the previous DACA expiration date and be signed). The proper filing fees must be included and the current versions of the required forms must be used. Consider submitting requests via a reliable overnight courier and retaining tracking information.
Screen clients for other immigration relief. DACA recipients should be screened for permanent immigration relief. Some recipients may have requested DACA pro se without an in-depth screening for immigration options. Others may be eligible for remedies that were previously unavailable due to changed circumstances in their home country or personal circumstances. Do not overlook forms of relief available to clients in removal proceedings, such as non-LPR or VAWA cancellation. Visit www.cliniclegal.org/daca to access our screening tools and continue to monitor political developments as Congress continues to work towards passing legislation that would provide relief to DACA recipients.