On January 9, 2018, Judge William Alsup of the United States District Court for the Northern District of California issued a preliminary injunction requiring the Department of Homeland Security (DHS) to maintain the Deferred Action for Childhood Arrivals (DACA) program on a nationwide basis on the same terms and conditions as were in effect before the program was rescinded on September 5, 2017, with certain important exceptions discussed below. Under the court’s order, DACA enrollees/recipients are allowed to renew their enrollments; the order also applies to individuals whose DACA status has already expired. The court’s order does not require DHS to accept first-time DACA applicants.
The court found that the plaintiffs in the consolidated cases, which include the University of California and the State of California, demonstrated a "likelihood of success on the merits of their claim that the rescission [of DACA by the federal government] was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law." In granting the preliminary injunction, the court stated that the decision of DHS to rescind DACA was "not in accordance with law" because it was based on the faulty legal premise that the federal agency exceeded its authority to implement DACA through the use of deferred action.
On June 15, 2012, DHS adopted the DACA program to postpone the deportation or removal of undocumented immigrants brought to the United States as children. Under the DACA program, the federal government’s deportation or removal of qualifying undocumented immigrants was deferred for a two-year period, subject to renewal. DACA enrollees/recipients were also eligible to receive work authorization for a two-year period that could be renewed upon expiration. As Judge Alsup stated in his decision, the DACA program allowed enrollees/recipients to "become part of the mainstream economy." According to data published by the United States Customs and Immigration Service (USCIS), 793,026 applicants received deferred action under DACA since its inception in 2012. As of September 2017, there were 689,800 active DACA enrollees/recipients nationwide with California being home to the largest number of DACA enrollees/recipients.
On September 5, 2017, Attorney General Jeff Sessions announced the federal government’s decision to rescind the DACA program. Under the terms of the rescission, new DACA requests and applications for work authorization were to be rejected. The federal government also stated it would no longer accept any DACA renewal applications received after October 5, 2017 and it would only renew applications of DACA recipients whose status expired before March 5, 2018.
In response to the rescission of the DACA program, several lawsuits were filed in federal court, including lawsuits filed by California Attorney General Xavier Becerra along with attorneys general for Maine, Maryland, and Minnesota, the University of California, certain DACA recipients, and others. The preliminary injunction is the first significant ruling in these cases.
The court’s order is significant in that it requires DHS to allow DACA enrollees/recipients nationwide to renew their applications or enrollments, "with the exception: (1) that new applications from applicants who have never before received deferred action need not be processed; (2) the advance parole feature need not be continued for the time being for anyone; and (3) [DHS] may take administrative steps to ensure fair discretion is exercised on an individualized basis for each renewal application." In the DACA context, advance parole is authorization provided by the federal government prior to departure for a DACA recipient to travel outside of the United States and return lawfully.
On January 13, 2018, DHS announced that USCIS had resumed accepting DACA renewal applications and explained its process, which can be found in English and Spanish by clicking on the link here. USCIS stated that additional guidance is forthcoming.
The legal battle over DACA is not over. On January 16, 2018, the federal government filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit. Attorney General Sessions stated that the federal government will concurrently also take "the rare step of requesting direct review on the merits of this injunction by the Supreme Court." It remains unclear how and when the Supreme Court will respond to the federal government’s extraordinary request.
AALRR will continue to monitor and provide updates on the ever-changing legal and policy landscape of DACA as judicial decisions are issued and legislative actions are taken affecting hundreds of thousands of undocumented students and families across our country.
Has the DACA program been completely reinstated?
No, but DACA enrollees/recipients can renew their applications even if their DACA status has already expired.
The court did not reinstate the DACA program in its entirety. Under the order, DACA enrollees/recipients nationwide are allowed to renew their DACA applications even though their status may have already expired. The federal government, however, is not required under the order to accept first-time DACA applicants. Also, the order does not require USCIS to accept advance parole applications.
Are DACA renewal applications being accepted now?
Yes. DACA renewal applications are now being accepted by USCIS.
Immigration matters are complex and fact specific. Therefore, it is highly advisable to consult with an immigration attorney when considering whether to submit a renewal application for the DACA program.
The renewal application process differs depending on when an individual’s status expired. If an individual had previously received DACA status and his/her status expired on or after September 5, 2016, USCIS states the individual may file his/her DACA request as a renewal request. For an individual whose DACA status expired before September 5, 2016, or previously terminated at any time, USCIS states the individual may file a new initial DACA request as if he/she were applying for the first time.
What does the injunction mean for DACA enrollees/recipients who have work authorization? The court ordered that the DACA program be maintained "on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, with certain exceptions." DACA enrollees/recipients will continue to be eligible to secure work authorization. DHS, moreover, has stated that work authorizations issued to DACA recipients will remain valid until such authorizations expire.
What can educational institutions tell students and their parents about the status of DACA? Schools and colleges may express their positions on DACA to students and families, but should avoid giving legal advice or making predictions about the consequences of any particular course of action in connection with an individual’s immigration status. As noted, immigration matters are complex and fact specific. Therefore, it is highly advisable that DACA students and their families consult with an immigration attorney when considering matters involving their immigration status. Students and parents should also be mindful of the dangers of immigration consultant/notario fraud.
Can undocumented students continue to attend public schools and colleges in California? Yes. Undocumented students continue to have the legal right to attend California public schools free from discrimination and harassment. The California Community Colleges, California State University, and the University of California, along with numerous school districts, municipalities, and public agencies, have affirmed their commitment to all students regardless of immigration status.