For information about U.S. Citizenship and Immigration Services’ Jan. 13, 2018, announcement that it is accepting DACA renewal applications, see our FAQ: USCIS Is Accepting DACA Renewal Applications, first posted Jan. 14, 2018.
Status of Current DACA Litigation
On September 5, 2017, U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals, or DACA, program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum directing the U.S. Department of Homeland Security to reject all initial DACA applications and associated applications for work authorization received after Sep. 5, 2017; to reject all renewal applications after Oct. 5, 2017, from current DACA recipients whose status expires between Sep. 5, 2017, and March 5, 2018; and to reject all other renewal applications from DACA recipients.
In the days and months following, multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. Two courts have since enjoined, or halted, the government’s termination of DACA and required U.S. Citizenship and Immigration Services (USCIS) to continue accepting DACA applications from individuals who have previously had DACA. A third court has ordered the government to follow its original 2012 policy of not sharing DACA recipients’ private information for enforcement purposes, and a fourth court has issued an order to strike down the termination of DACA and reinstate the original program, but it “stayed” its own order for 90 days to give the government a chance to further explain its decision to terminate the DACA program.
On May 1, 2018, Texas and six other states filed a lawsuit in the U.S. District Court for the Southern District of Texas challenging the 2012 DACA program itself. On May 2, the plaintiffs asked the court to issue a preliminary injunction that would stop USCIS from adjudicating applications for deferred action under DACA while the lawsuit is pending. As of the date this issue brief was published, the court has not issued any substantive opinions or orders in the case.
This issue brief summarizes the current status primarily of (1) lawsuits filed in federal court in California, collectively known as Regents of the University of California v. Department of Homeland Security, (2) two lawsuits filed in federal court in New York, Batalla Vidal v. Nielsen and State of New York v. Trump, (3) a lawsuit filed in federal court in Maryland, CASA de Maryland v. Trump, (4) two lawsuits filed in federal court in Washington, DC, NAACP v. Trump and Trustees of Princeton v. Trump, and (5) the lawsuit filed by Texas and six other states challenging the 2012 DACA program itself, Texas, et al. v. Nielsen, et al.
Regents of the University of California, et al. v. Department of Homeland Security, et al.
On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the Deferred Action for Childhood Arrivals, or DACA, program on a nationwide basis by allowing individuals to submit applications to renew their enrollment in DACA, subject to a few exceptions. Generally, parties objecting to a district court’s order must wait until the litigation is completed before asking the court of appeals for review. However, a preliminary injunction order is immediately appealable (a process referred to as an “interlocutory appeal”), meaning that the government can ask the Ninth Circuit Court of Appeals to review Judge Alsup’s order immediately.
Supreme Court denies government’s request for unusual “cert. before judgment” review. In this case, however, the government took the unusual step of seeking to skip review in the Ninth Circuit and instead appeal directly to the U.S. Supreme Court through a rarely used legal mechanism called “cert. before judgment.” The government filed its request, or petition for certiorari, with the Supreme Court on Jan. 18, 2018. This kind of request is rarely granted, as Supreme Court rules warn that the Court will grant this kind of early review only “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
On Feb. 26, 2018, the Supreme Court announced that it had “denied cert.,” meaning that it declined to hear the government’s direct appeal from the district court. Therefore, the case will return to the lower courts, and appeals will be heard first by the Ninth Circuit Court of Appeals. In other words, although the Supreme Court could hear the case eventually, the appeals process will be the normal one, beginning with the court of appeals.
Government continues to accept DACA renewal applications. Although the government could have sought a stay of Judge Alsup’s preliminary injunction — i.e., while it could have asked the judge or the Supreme Court to allow the government to continue with its process of shutting down DACA — it did not do so. Therefore, the government must continue to accept DACA renewal applications in accordance with the preliminary injunction.
Other orders subject to appeal. In the order issued on Jan. 9, Judge Alsup also ruled for the plaintiffs in holding that the decision to terminate DACA was reviewable by the courts under the Administrative Procedure Act because the decision was not committed to the agency’s discretion by law, as well as under the Immigration and Nationality Act. On Jan. 12, Judge Alsup issued an additional order that addresses the issue of whether the plaintiffs had pled enough facts to support additional legal claims. Usually, these kinds of intermediate orders in a case would not be directly appealable to the court of appeals, but Judge Alsup also granted the government’s request to appeal these portions of his January 9 decision and his January 12 decision to the Ninth Circuit through a special appeal mechanism that allows immediate appeals of intermediary orders. The parties have already briefed their arguments, and the Ninth Circuit will hear oral arguments on May 15, 2018, in Pasadena, Calif.
Batalla Vidal, et al. v. Nielsen, et al., and State of New York, et al. v. Trump, et al.
On Feb. 13, 2018, a U.S. district court in Brooklyn, New York, issued a second preliminary injunction requiring USCIS to accept DACA applications from people who have had DACA previously. The preliminary injunction was the same in scope as the order from the U.S. district court in California. The court in New York held that there was a substantial likelihood that the plaintiffs would prevail on their claim that the Trump administration ended DACA in a way that was arbitrary and capricious, and therefore unlawful.
The order was issued in two lawsuits currently pending before Judge Nicholas Garaufis. The Batalla Vidal case was brought by six New Yorkers who had benefited from DACA and stood up to challenge the administration’s decision to end the program. The plaintiffs in that case are represented by NILC, along with the Jerome N. Frank Legal Services Organization at Yale Law School and Make the Road New York. The State of New York case was brought by a coalition of seventeen attorneys general.
The government has appealed the decision to the Second Circuit Court of Appeals. The parties have completed their briefing and are waiting for an oral argument to be scheduled.
CASA de Maryland, et al. v. Dept. of Homeland Security, et al.
On March 5, 2018, the U.S. District Court for the District of Maryland issued an opinion in CASA de Maryland v. Trump dismissing most of the plaintiffs’ claims in that case, including the claim that the DACA termination was unlawful. However, the court did grant a nationwide preliminary injunction to DACA recipients on their claim regarding the sharing and usage of the information DACA recipients have provided to the government when applying for DACA. The court ordered the U.S. Department of Homeland Security (DHS) to follow its original 2012 guidance about not sharing or using DACA recipients’ private information for enforcement purposes against them or their family members unless certain circumstances exist, such as that the person poses a national security threat or has committed certain crimes.
The CASA de Maryland court order prohibits DHS from rescinding, modifying, or superseding this guidance for the time being. In addition, under the order, if DHS wants to use any DACA recipient’s information against them for enforcement purposes, DHS is required to make this request to the court directly and have the court do a confidential review of the request.
NAACP v. Trump, et al., and Trustees of Princeton, et al. v. United States of America, et al.
On April 24, 2018, Judge John Bates of the U.S. District Court for the District of Columbia issued a final judgment that (a) grants, in part, summary judgment in favor of Deferred Action for Childhood Arrivals (DACA) recipients and organizations that sued to reverse the Trump administration’s termination of the DACA program and (b) orders that the memorandum terminating the program be vacated. The order was issued in NAACP v. Trump and Princeton v. Trump, two cases that the court related to each other such that the order applies to both.
The judge’s decision would reinstate the status quo as it was before September 5, 2017, when the original DACA program was in place and U.S. Immigration and Citizenship Services (USCIS) was accepting first-time applications for DACA (rather than only DACA renewal applications). But, critically, the court also stayed (or paused) its own order for 90 days to allow the government to come up with a better explanation than the one it presented to the court for why it ended DACA.
This means that people who are otherwise DACA-eligible still may not submit a first-time application for DACA. If the judge’s order vacating the DACA-rescission memo does go into effect, it will not become effective until 90 days after the judge issued the order, i.e., not until July 23, 2018. In the meantime, the government may either appeal Judge Bates’s decision or issue a new DACA-rescission memo, either of which could have the effect of canceling the judge’s decision to vacate the original DACA-rescission memo. The result could be that USCIS would not be required to resume accepting DACA applications from first-time applicants.
However, due to the nationwide injunctions issued by the U.S. District Courts for the Northern District of California and the Eastern District of New York earlier this year, USCIS still is required to accept, and is currently processing, DACA renewal applications from people who have previously received deferred action and a work permit through DACA, while litigation in those courts works through the normal appeals process.
For more information on how to apply for DACA renewal, see NILC’s Frequently Asked Questions: USCIS Is Accepting DACA Renewal Applications. For more detail on what the April 24, 2018, decision from the D.C. District means, see NILC’s Alert: U.S. District Court in D.C. Orders That the DACA Termination Memo Be Vacated — but Not for at Least 90 Days.
Texas, et al. v. Nielsen, et al.
On May 1, 2018, Texas and six other states (Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia) filed a lawsuit against the federal government in the U.S. District Court for the Southern District of Texas, Brownsville Division, challenging the creation of the 2012 DACA program. The case was eventually assigned to the same judge who presided over U.S. v. Texas in 2015, Judge Andrew Hanen. U.S. v. Texas, which when it was originally filed was called Texas v. U.S., was a lawsuit filed to block the Obama administration’s implementation of both (a) an expansion of DACA (that was intended to make DACA available to more people) and (b) another, related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). In that lawsuit, Judge Hanen blocked the implementation of DAPA and expanded DACA, a decision that was upheld by the Fifth Circuit Court of Appeals and left in place by a 4-4 nonprecedential decision of the U.S. Supreme Court.
In their complaint, Texas and the other states argue that, over the summer of 2017, a larger group of ten states had threatened to amend their 2015 lawsuit to also challenge the original DACA program if the government did not terminate it by September 5, 2017 — and, in response, the government terminated DACA on Sep. 5. Though Texas and the other states dropped their threat to challenge DACA at that time, they now argue that the California and New York injunctions and the District of Columbia order (see above) have had the effect of prolonging the DACA program indefinitely. The injunctions issued in California and New York allow people who have had DACA to apply to renew it, and the D.C. order could nullify the Trump administration memorandum that terminated DACA, if the government does not act by July 23, 2018. Texas and the other states say that this indefinite prolongation of a program that the government terminated is why they filed a lawsuit now against a program that has been in place for nearly six years.
The plaintiff states’ complaint raises the same legal claims that the 2015 U.S. v. Texas lawsuit did, alleging that the creation of DACA violated both the procedural and substantive requirements of the Administrative Procedure Act, as well as the Take Care Clause of the U.S. Constitution. They seek a declaration that DACA is unlawful and a nationwide order prohibiting the government from issuing new periods of deferred action under the program. Judge Hanen ordered that an initial scheduling conference be held on July 31, 2018.
On May 2, 2018, Texas and the other states filed a motion for preliminary injunction to halt the 2012 DACA program from operating during the pendency of this lawsuit, both for initial and renewal applications. The plaintiff states requested relief by July 23, 2018, the date on which the 90-day period set out in the NAACP v. Trump and Princeton v. Trump cases expires. As of the date this issue brief was published, Judge Hanen has not responded to the plaintiff states’ request for a preliminary injunction.
On May 8, 2018, 22 individual DACA recipients, represented by the Mexican American Legal Defense and Educational Fund (MALDEF), asked Judge Hanen to intervene formally in this case as defendants. In their motion, they argue that if the court does not let them become part of the case, the agencies of the federal government that are the defendants in the case will not adequately represent DACA recipients’ interests. On May 15, 2018, Judge Hanen granted MALDEF’s and the 22 DACA recipients’ request to intervene, formally making them defendants in the case.
 Memorandum from Elaine C. Duke, Acting Secretary, U.S. Dept. of Homeland Security, to James W. McCament, Acting Director, U.S. Citizenship and Immigration Services, et al., re. Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” Sep. 5, 2017, https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca.
 The California litigation includes five cases that were consolidated before Judge William Alsup in the Northern District of California: Regents of the University of California, et al. v. Dep’t of Homeland Security, et al., No. 3:17-cv-05211; State of California, et al. v. U.S. Dep’t of Homeland Security, et al., No. 3:17-cv-05235; City of San Jose v. Donald J. Trump, et al., No. 3:17-cv-05380; Garcia, et al. v. United States of America, et al., No. 3:17-cv-05380; and Cty. of Santa Clara, et al. v. Donald J. Trump, et al., No. 3:17-cv-05813.
 The preliminary injunction is available at www.nilc.org/wp-content/uploads/2018/01/Regents-v-DHS-prelim-injunction-2018-01-09.pdf. For more information on it and its implications for DACA recipients, see FAQ: USCIS Is Accepting DACA Renewal Applications (NILC, last revised Jan. 16, 2018), www.nilc.org/faq-uscis-accepting-daca-renewal-applications/; USCIS and DACA Renewal Applications: What You Need to Know (NILC, Jan. 14, 2018), www.nilc.org/five-things-know-latest-uscis-announcement/; and Alert: Court Orders the Dept. of Homeland Security to Allow Individuals with DACA to Apply to Renew It (NILC, Jan. 10, 2018), www.nilc.org/daca-preliminary-injunction-regents-v-dhs/.
 The petition for certiorari before judgment was filed pursuant to 28 U.S.C. § 2101(e), https://www.law.cornell.edu/uscode/text/28/2101, and 28 U.S.C. § 1254(1), https://www.law.cornell.edu/uscode/text/28/1254. For an explanation of “cert. before judgment,” see Kevin Russell, “Overview of Supreme Court’s Cert. Before Judgment Practice,” SCOTUSblog, Feb. 9, 2011, www.scotusblog.com/2011/02/overview-of-supreme-court’s-cert-before-judgment-practice/.
 Petition for writ of certiorari before judgment: https://www.supremecourt.gov/DocketPDF/17/17-1003/28381/20180119100226711_DACA%20Rule%2011%20Petition.pdf.
 See Supreme Court Rule 11, https://www.supremecourt.gov/filingandrules/2017RulesoftheCourt.pdf.
 See Supreme Court, Order List (Feb. 26, 2018), https://www.supremecourt.gov/orders/courtorders/022618zor_j426.pdf.
 Batalla Vidal, et al. v. Nielsen, et al., 1:16-cv-04756 (E.D.N.Y); State of New York, et al. v. Trump, et al., 1:17-cv-05228 (E.D.N.Y.).
 The lawsuit is led by New York Attorney General Schneiderman, Massachusetts Attorney General Maura Healey, and Washington Attorney General Bob Ferguson, and filed by attorneys general from New York, Massachusetts, Washington, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. See “A.G. Schneiderman Files Lawsuit to Protect Dreamers and Preserve DACA,” New York State Office of the Attorney General press release, Sep. 6, 2017, https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-protect-dreamers-and-preserve-daca, and “AG Coffman Statement on Governor Joining Democrat DACA Lawsuit,” Colorado Attorney General’s Office press release, Sep. 13, 2017, https://coag.gov/press-room/press-releases/09-13-17-0.
 CASA de Maryland, et al. v. Dept. of Homeland Security, et al., 8:17-cv-02942 (D.Md.).
 NAACP v. Trump, et al., 1:17-cv-01907 (D.D.C.); Trustees of Princeton Univ., et al. v. United States of America, et al., 1:17-cv-02325 (D.D.C.).
 Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018).
 MALDEF’s press release on its filing, which includes hyperlinks to the Motion for Leave to Intervene, supporting documents, and biographies of all the proposed intervenors, is available at www.maldef.org/news/releases/2018_05_08_MALDEF_Files_Motion_to_Intervene_on_Behalf_of_Dreamers_in_Texas-Led_Lawsuit_Challenging_DACA/.
 MALDEF’s press release about this development is available at www.maldef.org/news/releases/2018_05_15_Federal_Court_Grants_MALDEF_Motion_to_Intervene_on_Behalf_of_Dreamers_in_Texas-Led_Lawsuit_Challenging_DACA/.