Litigation Related to Deferred Action for Childhood Arrivals (DACA)

Litigation Related to Deferred Action for Childhood Arrivals (DACA)

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Last updated OCTOBER 21, 2021*

On July 16, 2021, the U.S. District Court for the Southern District of Texas issued a decision holding the Deferred Action for Childhood Arrivals (DACA) program unlawful. The court vacated the 2012 DACA Memo (the document from then-Department of Homeland Security (DHS) Secretary Napolitano), which created DACA, and remanded the memo to DHS. In its accompanying order, the court prohibited the federal government from granting DACA to anyone requesting DACA for the first time. Thus, as of July 16, 2021, U.S. Citizenship and Immigration Services (USCIS) is not acting on any first-time DACA requests (although it can still accept submissions of these applications). USCIS continues to accept and grant DACA renewal requests from individuals who have previously had DACA and remain eligible for its protections. This latest development in the DACA program—which was created in 2012 to protect certain young people from removal from the United States—follows years of efforts by opponents to dismantle the program and by supporters to preserve it.

Previously, on September 5, 2017, the Trump administration announced that it was terminating DACA. NILC, along with partners and others around the country, filed litigation challenging the Trump administration’s termination of DACA in the Batalla Vidal case. Between January 2018 and June 2020, orders from three U.S. district courts kept DACA partially in place by re­quiring USCIS to continue accept­ing DACA applications from people who have or previously had DACA. The lower courts’ rulings were challenged all the way to the U.S. Supreme Court, which is­sued its opinion on June 18, 2020, holding that DHS’s termination of DACA was arbitrary and capricious, and therefore was unlawful. The Court’s decision in Department of Homeland Secu­rity v. Regents of the University of California, 591 U.S. __, 140 S. Ct. 1891 (2020), remanded the termination to DHS.

Despite the victory of the Supreme Court rejecting the government’s 2017 attempt to terminate DACA, USCIS failed to update its website or issue guidance on acceptance of first-time DACA applications. The Supreme Court is­sued its certified judgment in Regents on July 20, 2020, formally effectuating its June 18 opinion.

On July 28, 2020, Chad Wolf, claiming to be serving as the acting secretary of Homeland Security, issued a new memo­ (the Wolf Memo), that sought to dismantle DACA again. The Wolf Memo directed DHS personnel to reject all pending and future first-time requests for DACA, to reject all pending and future applications for advance pa­role absent “exceptional circumstances,” and to shorten DACA renewals from two years to one year. In response to the Wolf Memo, the Batalla Vidal plaintiffs amended their complaint, challenging the issuance of the Wolf Memo on the grounds that it was arbitrary and capricious, and that Chad Wolf had no legal authority to issue the memo. Plaintiffs also sought to certify class of those eligible for DACA under the 2012 Napolitano Memo. On November 14, 2020, the U.S. District Court for the Eastern District of New York certified a class of those eligible for DACA under the 2012 Memo and a subclass of those whose DACA applications were pending between June 30, 2020, and July 28, 2020, and were not or would not be adjudicated under the 2012 Memo. The court also found that Chad Wolf was not lawfully serving as DHS Secretary when he issued the Wolf Memo. On December 4, 2020, the Batalla Vidal court vacated the Wolf Memo, effectively reopening DACA. The court further ordered DHS to provide public notice that it was again accepting requests based on how DACA was administered before September 5, 2017, including first-time requests for DACA and applications for advance parole. The court also ex­tended to two years all DACA grants and employment authorizations that had been issued for only one year. On December 10, 2020, the court ordered DHS to send appropriate notices to relevant individuals whose applications for advance parole and first-time applications for DACA were wrongly rejected under the Wolf Memo, as well as to those who wrongly received one-year grants of deferred action and employment authorization documents (EADs) that expired after only one year. The court also ordered the government to mail the one-year EAD re­cipients new work permits no later than 30 days before the expiration of their current EADs.

The two tables in this publication provide information about litigation re­lated to DACA. Table 1 includes cases seeking to require the government to re­store DACA, as created by the 2012 Napolitano Memo. Some of these cases seek to require USCIS to comply with the Regents decision by adjudicating DACA ap­plications in accordance with the 2012 Napolitano Memo; others challenge the Wolf Memo directly, primarily by challenging the legality of Wolf’s service as acting secretary and, thus, his legal authority to issue the memo and the memo’s lawfulness under the Administrative Procedure Act (APA). NILC is counsel only in the Batalla Vidal v. Wolf case. For further information about the other cases described in Table 1, you may want to contact the entities involved in them (listed in the table) or read the complaints to which the table hyperlinks.

Table 2 provides information about the single case challenging the legality of DACA itself, which Texas and six other states filed on May 1, 2018.

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