Amidst the media's preoccupation with the shutdown, little was made of the Supreme Court's decision last week not to hear arguments on DACA this term. Unless the high court were to deviate from its normal procedure, this means that arguments will not likely be heard until its next term, assuming the case is taken up. As a consequence, and in light of pending litigation, current DACA recipients (and those who previously had DACA status) may continue to file for deferred action status at least through the end of 2019. The courts are still deciding whether individuals who never filed for DACA can file initial applications for the first time, but for those who have already filed and were granted DACA status, applications for renewal must still be accepted by USCIS pursuant to two federal court orders.
In a previous post, we discussed an important US District Court ruling that held the government's rescission of the DACA program to be unlawful. When the Court issued its ruling on April 24, 2018, it stayed its order to restore DACA for ninety days in order to provide the government with an opportunity to better explain its reasons for terminating the program. Just this month, on August 3, to be exact, the Court reaffirmed its order to fully reinstate DACA. The order is currently on hold for a period of 20 days, which will expire August 23, 2018. Up until that time, the government may seek appeal the Court's ruling and ask for a stay pending the appeal. Obviously, this is a very significant development for "dreamers," individuals who were brought to the US at a young age and have lived the majority of their lives here without blemish. If the Court's order goes into effect, not only will the government have to accept renewal applications-which it is currently doing now, under certain conditions-but it will also have to accept new initial applications. In other words, people who originally qualified for the DACA program but for some reason, never applied and subsequently missed out, may soon have a second chance to apply. While DACA does not confer or graduate into permanent residence, it is one of the few legal safe havens left for those without lawful status, especially now that all forms of humanitarian relief are being gutted. For those who qualify, DACA will at least insulate them from the threat of deportation while also enabling them to work with authorization.
Pursuant to pending litigation, the DACA program-once thought expired-is still in operation. USCIS is currently accepting renewal applications, and depending on the outcome of a pending case, may soon start accepting initial applications from those who did not apply for deferred action previously. The benefits of deferred action have been discussed previously, the most notable of which are protection from removal and employment authorization. That being said, not everyone with DACA status will necessarily qualify to renew it. It is not uncommon for those who have been granted DACA to commit acts which will jeopardize their ability to renew. And contrary to popular belief, DWI and criminal felonies are not the only means by which an individual will be denied.
In more DACA news, a District of Columbia federal district court ruled last week that the Department of Homeland Security's rescission of the DACA program was arbitrary and capricious. As a consequence, the rescission has been set aside and the government has been ordered not only to accept renewal applications (which it is currently doing as a result of previous litigation) but also new applications for DACA. However, the court stayed the order for a period of 90 days to allow DHS an opportunity to better justify why its decision to end the program was lawful. So while this is a momentous development for Dreamers, any excitement over DACA's resurrection should be tinged with a healthy dose of reality and a soupcon of skepticism. The door is still open for DHS to now legally insulate its reasoning and, in effect, close it for people who may have missed out on the chance to file initial applications. So, for the time being, no new DACA applications-applications being filed for the first time-- will be accepted unless and until the stay is over and the Court has made a final determination as to the government's reasoning. Additionally, while applicants who have previously held DACA status may currently submit renewal applications, this is only provisional relief in connection with pending litigation. If the courts ultimately rule in favor of the government, USCIS may stop accepting DACA applications altogether.
In the wake of Federal District Court Judge William Alsup's order last week, USCIS has announced that it will continue to accept and process DACA renewal applications. Under the guidelines,
Under the new government guidelines, USCIS will no longer accept any new initial applications for deferred action under the moribund DACA program. Nevertheless, there is a small window of opportunity for current DACA recipients (whose deferral is due to expire before March 5, 2018) to file for a renewal of their work authorization and protection before October 5, 2017. However, not all individuals should necessarily rush to renew. There are certain categories of people who need to exercise extreme caution, including but not limited to those who have criminal histories as well as those who have prior removal orders. Generally speaking, there is an increased risk now that once a DACA renewal application is denied or expires, people with prior orders and criminal issues will be targeted, notwithstanding the rhetoric that the government is not interested in going after "dreamers." The fact of the matter is that under President Trump's executive orders, just who is considered a priority for removal has been considerably expanded to the point where specific classes have been subsumed. On the streets, there is essentially no longer any practical distinction between a dangerous criminal alien and someone who has just overstayed his/her visa.
Yesterday, under President Trump's direction, Attorney General Jeff Sessions publicly announced that the Deferred Action for Childhood Arrivals program, otherwise known as "DACA", was legally untenable and therefore being phased out and ultimately terminated. Acting DHS Secretary Elaine Duke's September 5, 2017 Memorandum effectively rescinds the June 2012 memorandum establishing DACA and implements a "winding down" period. Therefore, it is critically important to understand that while the program is being cancelled-unless President Trump changes his mind-some aspects of it will continue up until March 6, 2018. Make no mistake: this policy reversal is unquestionably a serious and grave development; the status and employability of hundreds of thousands of young people will be jeopardized. At the same time, however, we should not let the hysteria cloud the facts. Yesterday was the death knell of DACA. It does not mean that everybody who had DACA status on September 5, 2017 suddenly lost his or her protection and will now be deported. The issue is much more complicated than that.