Federal Judge Orders DHS to Reinstate DACA: What to Know And What’s To Come

Earlier this year, the Supreme Court defended Deferred Action for Childhood Arrivals (DACA), effectively countering President Trump’s move to revoke the program at the beginning of his Presidential term. The decision, in part, was made on the grounds that Chad Wolf, the acting Secretary of the U.S. Department of Homeland Security (DHS), assumed his position illegally . and without the proper legal measures required for a presidential cabinet appointment. The Supreme Court mainly focused, however, on how DHS failed to use proper, legal protocol when it attempted to terminate the DACA program.

The implications of this decision are convoluted, especially as the program itself is still under review by the DHS. But, following the Supreme Court decision, the Department issued a series of statements clarifying next steps for impacted non-citizens and addressing the future of the DACA program.

The latest of these statements was released on July 28, 2020 in the form of a memo from DHS. It stated that, despite the Supreme Court’s decision, DHS would reject new first-time DACA applications, reject requests for Advance Parole with the exception of special circumstances, and limit the period of renewed Deferred Action to one year, down from the program’s initial two.

DACA, an Obama-era immigration policy, has protected about 650,000 individuals who arrived in the U.S. unlawfully as children. The program protects these individuals from deportation and allows them to work in the country legally.

“As the Department continues looking at the policy and considers future action, the fact remains that Congress should act on this matter,” Wolf said in the above-mentioned DHS memo, adding that elements of the policy may warrant “full rescission of the DACA policy.”

On December 4, 2020, U.S. District Court Judge Nicholas Garaufis, who sits in the Eastern District of New York, ruled that he was fully restoring DACA. Judge Garaufis ordered DHS to issue a public notice within three days stating that the Department would accept first-time DACA applications and restore work permit validation periods to the 2012 two-year duration. The Court also held that DHS must also allow for Advance Parole requests.

In his order, Judge Garaufis states:

DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court's Memorandum & Order of November 14, 2020. The notice must also make clear that deferred action and employment authorization documents ("EADs") granted for only one year are extended to two years, in line with the pre­Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs, and post it to the docket within 3 calendar days of this Order.

Based on how DHS has responded to pro-DACA court decisions in the past, it is still too soon to know whether DHS will honor the court order, seek its own judicial counter-response, or simply ignore the order. Still, in the dawn of a Biden presidency, the prospect of DACA’s survival is becoming more realistic. The President-elect has pledged to reinstate the program within the first 100 days of his presidency, an action which would welcome applications from an estimated 57,000 individuals who have become eligible for DACA since Trump rescinded it in 2017.

Since Trump took office, DACA has seen major adjustments to its policy, and it’s bound to undergo more changes under the incoming administration. As the program evolves, Ibrahim Law is here to guide you through your next steps.

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Michael G. Ibrahim, Esq.
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Michael G. Ibrahim, Esq.
Founder & Principal Attorney — Ibrahim Law Office

DePaul University College of Law
J.D., 2013
Certificate in Public Interest Law

University of Illinois at Urbana-Champaign
B.A. Political Science & International Studies, 2010

Benjamin Hooks Public Interest Law Scholar

Editor, Journal for Social Justice — DePaul University

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