W&A Immigration Law Update - Judge Orders Government to Fully Reinstate DACA Program
What is DACA?
Deferred Action for Childhood Arrivals (DACA) is a program established by President Obama in 2012 that granted a form of temporary protection from deportation known as "deferred action" to undocumented immigrants who came to the United States before the age of 16, resided in the United States since June 2007, and met other requirements.
On September 5, 2017, the Trump Administration announced it would be ending the program effective March 5, 2018. A number of court challenges were filed that blocked the Administration from being able to terminate the program. Those cases were ultimately appealed to the U.S. Supreme Court, leading to a decision on June 18, 2020, and an announcement from the Department of Homeland Security on July 28, 2020.
What did the U.S. Supreme Court decide in June 2020?
On June 18, 2020, the U.S. Supreme Court ruled in Department of Homeland Security v. Regents of the University of California that the Trump Administration's decision to rescind DACA was "arbitrary and capricious" because it did not follow the proper procedures, but recognized that the Administration could still move to terminate DACA if it followed the rules.
How did the Department of Homeland Security respond to the U.S. Supreme Court's decision?
On July 28, 2020, the Administration announced that it would continue to allow renewal applications under the program, but for a shorter time period, and it would not accept any new initial applications. It stated that DACA renewal applications for individuals who have been approved for DACA status in the past, even if their work permits have expired, will continue to be allowed but their DACA status will only be extended for one year (not two years, as was formerly the case).
December 7, 2020 Announcement from the Department of Homeland Security
On December 4, 2020, a U.S. district court in the Eastern District of New York ordered that the July 2020 memorandum was vacated. As a result, on December 7, 2020, the government published a notice on its website that stated, effective immediately, that the government is accepting initial DACA applications. In addition, any DACA and employment authorization documents issued for one year instead of two years because of the July 28, 2020 memorandum are extended to two years and the government will take steps to provide evidence of this extension. The government must also provide mailed notice to class members by December 31, 2020.
The government will provide a status report on DACA to the court by January 4, 2021. The report must provide information about the applications for DACA received, adjudicated, approved, denied, and rejected between November 14, and December 31, 2020, as well as the applications previously affected by the July 2020 memorandum. The court may impose more orders if they become necessary.
The December 7, 2020 update posted by DHS states that DHS will comply with the court's order "while it remains in effect," but that it may seek "relief" from the order. This means that DHS may appeal or try other legal avenues to overturn the court's decision and maintain the status quo set by the July 2020 order. As of December 8, 2020, the court's order remains in effect.
What should you do if you are a current DACA recipient or have had DACA in the past?
If your current DACA status and work permit expire in 2020 (or early 2021) or have already expired, we recommend that you consider filing a renewal of your DACA status. It is advisable to consult with an attorney before submitting an immigration application, especially if you have had any contact with the police or immigration officials, or have left the United States since your last DACA application was approved.
It is also advisable to explore whether you might qualify for an immigration status with a path to citizenship. This is something to consider especially if you: (1) are married to a U.S. citizen or lawful permanent resident; (2) have been a victim of a crime such as domestic violence, sexual assault, or other crimes in the United States; or (3) are less than 21 years old.
What should you do if you've never applied for DACA but think you might qualify?
If you think you might qualify for DACA but have never applied, at this time you can file an initial application because of the New York federal court's order vacating the July 20 DHS memorandum. While DHS has indicated that it may try to appeal the ruling, at this time, per the December 7, 2020 update, USCIS is accepting first-time requests for DACA.
I have DACA and am currently employed; do I have to tell my employer about my status?
You are not required to tell your employer that you have DACA even if your work permit expires. The employer is required to re-verify your work authorization status and should not take adverse action against you as long as your work permit remains valid. If your work permit will expire in 2020 (or early 2021) you should seek renewal if you remain eligible.
I have DACA and was planning on traveling outside the United States under advance parole. Can I still do that?
The July 28 Department of Homeland Security announcement stated that DHS would only consider requests for permission to travel abroad ("advance parole") for current DACA recipients in "exceptional circumstances," but did not define what "exceptional circumstances" means. You should be exceedingly cautious if you plan to travel outside the United States under advance parole and we recommend you consult with an attorney before doing so. If you leave the United States without advance parole you may not be able to return to the United States and you will most likely be ineligible to renew your DACA status. Additionally, because of the COVID-19 pandemic, travel restrictions are constantly changing and there is risk that you may not be able to return to the United States even if you have an advance parole document.
I have DACA - is there a risk that I will be deported if my DACA status terminates?
The U.S. Supreme Court's decision allowed for DACA to continue and the DHS announcement allows DACA recipients to renew their status. The Administration could still seek to end the program in the future, which could lead to DACA recipients losing their status and again becoming subject to immigration enforcement like they were before obtaining DACA. The highest risk is for DACA recipients who had a deportation order on their record before obtaining DACA or who have been or will be arrested by the police, even for minor offenses.
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This Wandro & Associates Update is intended to inform firm clients and friends about legal developments, including recent decisions of various courts and administrative bodies. Nothing in this Practice Update should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this Update without seeking the advice of legal counsel.