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Federal Judge Blocks Trump from Ending DACA – What You Need to Know

On Tuesday, January 9, 2018, a federal judge in San Francisco issued a nationwide injunction that temporarily blocks President Trump’s “phase-out” of the Deferred Action for Childhood Arrivals program. Most commonly known by its acronym, DACA is an Obama-era initiative which provides both temporary protection from deportation and work authorization to certain undocumented youth who came to this country when they were children. The injunction not only prevents the termination of the DACA program (which was scheduled to end on March 5, 2018), but also instructs the Department of Homeland Security (DHS) to resume accepting renewal applications.

U.S. District Judge William Alsup, Northern District of California

This latest twist and turn stems from litigation involving five consolidated lawsuits (brought by the University of California and others) which challenged the government’s decision to terminate DACA, calling it both arbitrary and capricious. In handing down yesterday’s ruling, the federal judge agreed while also noting that the DACA rescission was based on a flawed legal premise that the DHS lacked authority to create the program in the first place.

The fate of the DACA program (and its roughly 700,000 beneficiaries) has been swaying precariously in the wind as lawmakers from both sides of the political spectrum have been debating a more permanent legislative fix. This latest DACA development adds even more confusion and complexity to the mix – with the Whitehouse denouncing the decision, the department of Justice vowing to fight back, and no word yet on how the Department of Homeland Security will respond to the judge’s ruling that the agency reinstate the program for current beneficiaries.

While this latest chapter of the DACA saga is still being written (at a breakneck speed), immigration practitioners must be prepared to act quickly in the event the DHS begins accepting DACA renewal applications while also making sure to advise clients of the potential risks involved.

Here’s what we know thus far:

(1) The ruling only impacts DACA renewal applications

According to the preliminary injunction, the DHS must maintain the DACA program on a nationwide basis under the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing current DACA individuals to renew their enrollments. The ruling does not require the DHS to accept new applications from applicants who have never received deferred action.

(2) DHS is under no obligation to grant advance parole for DACA beneficiaries  

The ruling also indicates that that the advance parole feature need not be continued for the time being for anyone. Previously, DACA beneficiaries could apply for advance parole (after their DACA status had been approved) in order to travel outside the US and return lawfully. The advance parole option was always a bit risky for DACA beneficiaries, so it’s certainly not a surprise that the judge did not require this particular benefit.

(3) DHS has been ordered to publicity notify DACA beneficiaries of a renewal process

Specifically, the agency must post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with the order. The agency must also keep records of its actions on all DACA-related applications and provide summary reports to the Court (and counsel) on the first business day of each quarter.

As of this writing, the DHS has posted a new announcement on their DACA 2017 page which notes that “this page is under review. More information is forthcoming.”

(4) Renewals will likely be filed on Form I-821D (which is currently not available)

Prior to the DACA rescission last year, applicants were instructed to file the Form I-821D with the USCIS in order to request deferred action. As of this writing, the USCIS has not yet re-posted the form for use (currently, the form page merely indicates that “DACA is Ending”  – a message which was posted last year). If/when DACA renewals resume, we anticipate the agency will utilize the same form, along with instructions that it can only be submitted for renewal applications. Applicants will also want to file Form I-765 to renew their EADs.

(5) Anything can still happen

In the wake of this news, political leaders from both parties have reassured the press that they are continuing to seek a more permanent solution for the so-called Dreamers (which may or may not be tied to continuing federal budget negotiations). Meanwhile, both the White House and the Department of Justice will likely appeal this latest decision, which means that any DACA renewal door may close soon after it’s been opened.

What’s next?

LawLogix is closely monitoring this evolving story, with a particular focus on ensuring that our clients can quickly (and efficiently) prepare DACA renewals using the Edge immigration case management system. Stay tuned for more updates!

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.