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DACA reinstated (for now)

by | Dec 7, 2020 | Immigration Law

DACA recipients and their families have new reason to rejoice. On December 4, 2020, the U.S. District Court for the Eastern District of New York (“EDNY”) struck down recent restrictions on the DACA program enacted by the Department of Homeland Security (“DHS”). (Batalla Vidal, et al., v. Wolf, et al., Case 1:16-cv-04756-NGG-VMS (USDC EDNY Dec. 4, 2020). The Court ordered DHS to post a public notice by December 7, 2020 announcing:

1.) DHS is accepting:

a.) First-time requests for DACA;

b.) Renewal requests; and

c.) Advance parole requests, based on the terms of the DACA program prior to 9/5/17. AND

2.) One-year deferred action grants and employment authorization documents (“EADs”) must be

extended to two years.

The Court completely vacated the DHS Memorandum issued on July 28, 2020. Additionally, the Court is still considering relief for a “DACA Class” of all persons who are or will be eligible for DACA under the original 2012 DACA terms and a “DACA Subclass” of all persons who had pending DACA applications on any date between June 30, 2020, and July 28, 2020, that have not been or will not be adjudicated in accordance with the 2012 rules.

The Court’s order is the latest in a string of litigations on the DACA program following Trump administration’s September 5, 2017 announcement to end DACA. Following injunctions in several courts, DHS had settled on a general policy while litigation played out. This policy rejected new DACA applications and parole requests, while tolerating DACA renewals (DACA recipients must renew their status every 2 years). On June 18, 2020, the Supreme Court of the United States (“SCOTUS”) finally ruled that the Trump administration’s 2017 effort to overturn DACA was arbitrary and capricious in violation of the Administrative Procedure Act. In spite of this clear ruling, DHS never reinstated the DACA program. Instead, on July 28, 2020, DHS Acting Secretary Chad Wolf issued a Memorandum doubling down on its restrictive policies. The Wolf Memorandum reduced DACA renewals from 2-years to 1-year and reiterated DHS policy to reject new applications and parole requests. On November 14, 2020, the EDNY Court decided that Mr. Wolf was not lawfully serving as Acting Secretary of DHS when he issued the Wolf Memorandum and ordered the parties to brief the appropriate remedy. The Court’s most recent order is the result.

As of the time of publishing this blog, DHS had not yet updated its DACA policy. It is highly likely that DHS will appeal this decision, which could result in this decision being stayed. For now, DACA should be considered fully reinstated.