Updates on litigation regarding the DACA program
There are currently no changes to the Deferred Action for Childhood Arrivals (DACA) program. The United States Citizenship and Immigration Services (USCIS) is still accepting and processing DACA renewal applications only from individuals previously granted the benefit. On August 3, 2018, a federal judge in Washington, D.C., issued an order stating the government should reinstate the DACA program in full. However, this order is not yet final and does not go into effect immediately.
USCIS will start accepting new applications only if the ruling becomes final. At the moment, this ruling is on hold until August 23 to allow the government 20 days to appeal this decision. It’s expected the Trump administration will appeal this ruling to the U.S. Court of Appeals for the District of Columbia, as it has appealed similar decisions in California and New York. Upon appealing, the administration can request an extended hold on the ruling, pending the conclusion of that appeal process.
On April 24, 2018, the D.C. court held that the government’s decision to rescind DACA was unlawful and therefore, the memorandum terminating the program should be vacated. This would have required the government to accept and process both new DACA applications and renewals. However, this order was placed on a 90-day hold to allow the government to better justify the decision to terminate the program. In July, the government asked the court to revise its April 24 order. The decision on August 3 is the court’s denial of the government’s motion to reconsider their April 24 decision.
What does the future hold?
The finality of this order and full reinstatement of DACA will depend on several items.
First, this order vacating the government’s termination memorandum would only go into effect on August 23 if the government appeals and is unsuccessful in obtaining a stay from the Appeals court.
Additionally, litigation in other federal districts could affect the validity of this order. On August 9, a federal judge in Texas heard arguments in the Texas v. Nielsen case. This lawsuit, brought by seven states and led by Texas, challenges the validity of the entire DACA program and requests a nationwide injunction that could block DACA grants and renewals going forward. If the Texas court grants this nationwide injunction, before or after the August 23 deadline, the Trump administration would be under conflicting orders. When there’s a split among circuit courts this way, the Supreme Court could step in. Still, unless an emergency ruling is issued, a full decision might not be issued until next summer.
Taking all this into consideration, the future of DACA remains uncertain.
How do I prepare for what comes next?
In anticipation of the D.C. court’s ruling becoming final on August 23, you should consult with an attorney if you believe you may be eligible to file for DACA. The window for submitting a new DACA application could be very short. Taking advantage of this window of opportunity could be crucial for future protection.
Alternatively, in the event that the conflicting federal court litigation causes a freeze on DACA renewals, it’s also important that you consult with an attorney to discuss your options.