On January 20, 2021, the Biden Administration issued a Presidential Proclamation entitled "Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)". The Proclamation directs the Secretary of Homeland Security, in consultation with the Attorney General, to "take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA."
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
On December 4, 2020, a federal court ruled that the DHS Acting Secretary did not have the legal authority to issue the July 28 memorandum, and ordered that the memorandum be vacated. The court further ordered that Department of Homeland Security restore DACA to its pre-September 2017 terms and that the agency post on its website, within three calendar days of the court order, information about the program's restoration and the agency's acceptance of new DACA applications and applications for advance parole. OVIS will continue to provide updates regarding the DACA program and update our resource page.
On December 8, DHS and USCIS posted announcements confirming the agency will comply with the Court's Order "while it remains in effect," leaving open the possibility that the government may challenge the Court's decision. According to the postings, beginning December 7, 2020 the agency will accept new DACA applications and requests for advance parole authorization, in addition to DACA renewal applications.