DACA Continues For Some, As Litigation Proceeds

“What is the status of DACA?,” I am asked. Here it is:

In brief, the Trump Administration took steps to cancel the program on September 5th, 2017, of its own volition and ostensibly due to pressure from certain states litigating the program’s legality. Several lawsuits immediately sought to enjoin (halt) the Administration, and have been successful to date.  The program continues during the litigation, under restricted terms. New applications are not accepted, but extensions and reinstatments may be filed. Full details farther below, from USCIS.

As to the on-going litigation:

The Ninth Circuit case–which is the jurisdiction of the West Coast–is called Regents of the University of California v. Department of Homeland Security.  On November 8th, 2018, the Ninth Circuit upheld the preliminary injunction of the Administration’s order to cancel the program, finding that the Plaintiffs are likely to prevail on the claim that the cancellation of the program is arbitrary and capricious. Similar cases are pending in the Second Circuit (Battala Vidal v. Nielsen) and the D.C. Circuit (NAACP v. Trump).

On November 6th, 2018, the U.S. Department of Justice made a formal request to the U.S. Supreme Court that it take all these cases on certiorari, and resolve the issues surrounding DACA.  Typically, the Supreme Court will take a case where there is a disagreement between the Circuits, but so far, the cases are still pending in the Circuits, albeit with the temporary injunction upheld. It is unusual for the DOJ to request an earlier hearing, and it would be unusual for the Supreme Court to do so, but the rules do allow it do so in exceptional circumstances.  The Supreme Court can be a bit mysterious in the way it decides as an institution to hear or case or not. However, it is likely they will consider the matter of hearing the cases early when the justice meet in the new year, and if they decide to do so, we will likely hear on January 7th, 2018.  If I had to guess, I think the Supreme Court will let the Circuits handle the matter in typical fashion.

In the meantime, persons who have been granted DACA may apply for extensions. This is not a guarantee that the extension will be granted, as each case is decided on its merits. Additionally, persons who have previously had DACA but have had it lapse may apply again. More information on applying is available at www.uscis.gov , and I’ve pasted USCIS’s advisory below. Various clinics are also available to assist with the applications, through organizations such as Northwest Rights Immigrant Project. Additional sources of information include the NWIRP, the National Immigration Law Center, and the Immigrant Legal Resource Center.

Below is USCIS’s statement regarding DACA, based on current litigation:

Feb. 14, 2018, Update:  USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. The scope of the Feb. 13 preliminary injunction issued in the Eastern District of New York is the same as the Jan. 9 preliminary injunction issued in the Northern District of California. Unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017, until further notice.

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your most recent DACA grant was previously terminated, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but you may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the June 15, 2012 DACA memo (PDF)