DACA Policy Updates
DHS Memo Institutes Restrictions to DACA program protections
On July 28, 2020 Department of Homeland Security (DHS) issued a memorandum addressing how it will administer the DACA program while the agency reviews the program in light of the June 18, 2020 Supreme Court decision. The Supreme Court ruling did not preclude the Administration from rescinding DACA in the future. Rather, the Court said that the Administration's decision to rescind DACA was arbitrary and capricious under the Administrative Procedure Act, and directed the government (DHS) to reconsider its decision. The memo states that while DHS undergoes this reconsideration and review of DACA, the agency will institute new restrictions related to DACA protections. Specifically, DHS Acting Secretary Chad Wolf says in the memo that effective immediately DHS will:
- Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future
- Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries
- Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year
- Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods
- Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances
- Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods
- Exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate
There will likely be legal challenges to these newest efforts to limit DACA protections. OVIS will continue to provide updates as we learn new information.
U.S. Supreme Court Upholds DACA Program
On Thursday, June 18, 2020, the U.S. Supreme Court in a 5-4 decision upheld the DACA (Deferred Action for Early Childhood Arrivals) Program. The Court held that the rescission of DACA by the administration was unlawful, temporarily allowing for the continuation of the program. We do not have details yet as to how Department of Homeland Security will proceed following the decision, including whether new DACA applications will be accepted, and if DACA recipients will be able to request Advance Parole permission to travel internationally. OVIS will continue to monitor this situation and update our website as information becomes available.
DACA Litigation Update
On Friday, June 28, 2019 the U.S. Supreme Court consolidated and agreed to hear three cases challenging the rescission of DACA. The Court heard oral arguments in the case on Tuesday, November 12, 2019. On April 20, 2020 the Court agreed to grant the request of the National Immigration Law Center to file an additional brief describing the impacts of the COVID-19 crisis on the DACA decision. The Court's decision could still be issued in late Spring or early Summer 2020.
On June 3, 2019, the U.S. Supreme Court denied the Administration's motion to expedite consideration of its petition in the DHS v. Casa de Maryland case. The government is appealing the Fourth Circuit Court of Appeals decision in May 2019, which found that the government's decision to rescind DACA violated the Administrative Procedure Act. The Fourth Circuit's decision also stopped Department of Homeland Security from sharing information about DACA recipients for enforcement purposes.
On November 8, 2018 the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming the January 9, 2018 decision of the Federal District Court for the Northern District of California ordering Department of Homeland Security to maintain the DACA program and adjudicate renewal applications for current DACA recipients.
On August 3, 2018 the federal court for the District of Columbia ruled that the administration must fully restore the DACA program.
On August 31, 2018 the U.S. District Court in the Southern District of Texas denied the request for a preliminary injunction to stop the DACA program. The case was brought by the State of Texas and several other states challenging the DACA program. Dartmouth joined in an amicus brief filed with the Texas Court defending DACA.
The National Immigration Law Center has a helpful timeline summarizing the Texas case and other ongoing DACA litigation in the federal courts.
USCIS Resumes Processing DACA Renewals Following Federal Court Order
On January 13, 2018 USCIS posted instructions for filing DACA renewals following a January 9, 2018 federal court order. According to the USCIS website, the agency will accept renewal applications for DACA recipients whose DACA expired on or after September 5, 2016. For individuals who previously received DACA, but whose DACA expired before September 5, 2016, DACA requests can be filed as a new request instead of a renewal. USCIS is not accepting new DACA applications from individuals who have never had DACA before. The National Immigration Law Center and United We Dream have prepared a set of FAQs on DACA Renewal Applications.
On April 24, 2018 the U.S. District Court in Washington D.C. issued an order vacating the White House's decision to rescind DACA, and requiring the Department of Homeland Security to accept and process both new and renewal DACA applications. The Court said the order would not go into effect for 90 days to allow Homeland Security an opportunity to "better explain its view that DACA is unlawful."
Federal Court Ruling on DACA
On January 9, 2018 the federal district court for the Northern District of California issued an order directing the government to partially maintain the DACA program. The decision orders the Dept. of Homeland Security (DHS) to maintain the DACA program nationwide, with the following exceptions: new applications "need not be processed"; advance parole applications based on DACA do not have to be continued; and the government can exercise discretion in adjudicating renewal applications. The order instructs DHS to post notice that it will resume receiving DACA renewal applications. The agency updated its webpage on January 13, 2018.
On February 13, 2018 the Federal District Court in New York issued a nationwide preliminary injunction ordering the government to maintain the DACA program pursuant to the same terms and conditions that existed before the September 5, 2017 DACA rescission memo, subject to the same limitations of the January 9, 2018 injunction issued in the California District Court case.
On February 26, 2018, the U.S. Supreme Court denied certiorari in the California case. This decision means that for now, USCIS will continue to process renewal applications under the guidelines provided by USCIS while the litigation works through the regular appeals process.
Rescission of the DACA Program
On September 5, 2017 the Attorney General announced the rescission of the DACA program. According to the Memorandum issued by the Department of Homeland Security (DHS) and accompanying FAQs, the agency will continue to adjudicate DACA requests that were filed with DHS by September 5, 2017. DHS will also accept applications for DACA renewals from beneficiaries whose current DACA benefits will expire between September 5, 2017 and March 5, 2018, so long as those requests are received by DHS by October 5, 2017. Two lawsuits have been filed challenging the rescission of the program.
On Sunday, October 8, 2017 the White House issued a summary of immigration policy priorities which it wants Congress to include in legislation to continue the DACA program. The list of priorities, detailed in additional outlines issued by the White House and published on its website, address border security measures, interior enforcement, the diversity lottery, and family and employment-based immigration.
OVIS will continue to monitor this major change in policy, and update our website as new information becomes available.
Dartmouth's statement in response to the decision to rescind DACA, as well as President' Hanlon's September 1, 2017 letter to President Trump concerning DACA can be found on the Office of the President website.
The Immigration Legal Resource Center has issued a helpful guide about what DACA students need to know about the end of DACA.
New Dream Act Legislation
Dream and Promise Act passes the House of Representatives: On June 4, 2019 the U.S. House of Representatives passed the Dream and Promise Act, which would create a permanent path to U.S. citizenship for DACA recipients, and individuals with Temporary Protected Status (TPS). The bill will now go to the U.S. Senate.
On July 20, 2017 Senators Graham and Durbin introduced new Dream Act legislation. A summary of the proposed bill and answers to Frequently Asked Questions can be found on the National Immigration Law Center website.
The American Immigration Lawyers Association (AILA) has provided good information about how to advocate for the Dream Act: Four Easy Ways to Advocate for the Dream Act.