Litigation Related to Deferred Action for Childhood Arrivals (DACA)

Litigation Related to Deferred Action for Childhood Arrivals (DACA)

Last updated JANUARY 14, 2021*

On September 5, 2017, the Trump administration announced that it was terminating Deferred Action for Childhood Arrivals (DACA), a form of immigration relief created during President Obama’s administration to protect certain young people from removal from the United States. NILC, along with partners and others around the country, filed litigation challenging the Trump administration’s termination of DACA. Between January 2018 and June 2020, orders from three U.S. district courts kept DACA partially in place by requiring U.S. Citizenship and Immigration Services (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 the U.S. Department of Homeland Security’s (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 in 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. On June 30, 2020, the U.S. Court of Appeals for the Fourth Circuit issued its mandate in a parallel case, CASA de Maryland v. U.S. Department of Homeland Security, in which the Supreme Court had denied certiorari following its decision in Regents. The Fourth Circuit’s mandate effectuated the court’s previous decision setting aside the DACA termination and requiring the government to accept and process DACA applications in accordance with the 2012 memo issued by the then DHS secretary, Janet Napolitano, that created DACA (the Napolitano memo). The Supreme Court issued its certified judgment in Regents on July 20, 2020, formally effectuating its June 18 opinion.

On July 28, 2020, after more than a month of silence, Chad Wolf, claiming to be serving as the acting secretary of Homeland Security, issued a new memorandum (the Wolf memo), the intent of which was 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. The Wolf memo purported to be a “reconsideration” of DACA but took substantial immediate actions. However, on December 4, 2020, the U.S. District Court for the Eastern District of New York, in Batalla Vidal v. Wolf, vacated the Wolf memo because Wolf lacked the authority to serve as the acting secretary of DHS. The court thus effectively reopened 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 to 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.

To download the tables, click on the PDF icon, above.

* Table 1 was previously published separately under the title “Cases Challenging the Termination of the DACA Program.” When Table 2 was added, the title was changed to “Litigation Related to the DACA Program.” As of the July 3, 2019, edition, this publication’s title is “Litigation Related to Deferred Action for Childhood Arrivals (DACA).”