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 also filed suit and are asking 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 article 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 rescission is likely unlawful and ordered 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 based on a flawed legal premise and must be set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The judge 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. In response to this injunction, on January 13, 2018, USCIS resumed accepting DACA renewal applications from those who had previously received DACA. An appeal is pending with the Ninth Circuit Court of Appeals.
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, ordering USCIS to accept certain DACA applications while litigation continues. The 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 decision has been appealed to the Second Circuit Court of Appeals.
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 because DHS failed to provide a valid legal reason for concluding that the program was unlawful. The judge ordered that the original DACA program be fully restored. However, on August 17, 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. 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.
- Texas lawsuit challenges president’s authority to create the 2012 DACA program
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 is unlawful, the Texas case claims that the Obama administration never had the authority to create DACA to begin with. The case is before the same district court judge who blocked the implementation of DAPA and expanded DACA in a previous lawsuit, Texas v. United States.
Texas and the other states requested a preliminary injunction, asking the judge to order USCIS to stop approving any DACA requests while the case continues. On August 31, the judge ruled against the states and decided not to block the adjudication of DACA applications, including renewal requests. While the states might ultimately prevail in proving DACA was unlawful, the judge declined their injunction request because they had delayed in requesting this relief for six years and because halting the program immediately would harm the interests of DACA recipients. The judge stayed his order for 21 days to provide parties an opportunity to file an interlocutory appeal to the Fifth Circuit Court of Appeals. For now, earlier injunctions from courts in California and New York that ordered USCIS to continue accepting DACA renewals nationwide remain in effect.
What are the possible outcomes of this litigation?
It is difficult to predict what will happen since multiple outcomes are possible. The Ninth Circuit and Second Circuit courts have yet to rule on the two injunctions that currently require USCIS to accept and adjudicate DACA renewal requests. While the recent order from the district court in Texas has not stopped DACA, the plaintiff states are likely to appeal the decision to the Fifth Circuit. These cases are ongoing and it is likely that the Supreme Court will ultimately be called upon to make a final decision about the legality of the DACA program and its termination.
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 over a year ago may request DACA under the court orders. Individuals whose DACA expired before September 5, 2016, or was terminated at any time, must apply as initial applicants and include the required supporting evidence. Those whose DACA expired on September 5, 2016 or later 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 terminated) in Part 1 of the Form I-821D.
Which individuals who currently have DACA may apply to renew?
Anyone who has previously held DACA may apply under the judges’ orders from federal courts in California, New York, and D.C. However, USCIS has not provided specific guidance on how it will treat early renewal requests.
When should renewal requests be filed?
The content and timing of future decisions in the various DACA lawsuits are difficult to predict. Given the uncertainty of the DACA landscape, CLINIC recommends that current DACA recipients consider filing renewals without delay in the event that a future decision causes USCIS to stop accepting renewal requests. 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 or, in certain cases, rejected and returned. 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 be required to accept DACA renewal requests and whether it will continue to adjudicate pending renewal applications if one of the circuit courts orders it to stop accepting DACA renewals. 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 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.
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 a new NTA policy memo issued on June 28, 2018. 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. Immediately 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 before September 5, 2016 must file as initial applicants, while those whose DACA expired on or after September 5, 2016 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 as soon as possible.
Make sure DACA requests are properly completed before submitting. This opportunity to renew DACA may be brief. Ensure that any 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. 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 CLINIC’s website 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.