Current Status of DACA Litigation

June 8, 2018 § Leave a comment

In September of 2017, Attorney General Jeff Sessions made an announcement that the DACA program would be terminated. Following the announcement, then-Secretary of Homeland Security Elaine Duke issued a memorandum directing Department of Homeland Security (DHS) officials to reject all initial applications received after September 5, 2017 and all renewal applications received after October 5, 2017.

Numerous lawsuits were filed almost immediately and were continued to be filed in the following weeks and months. 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.

Most recently on May 1, 2018, Texas and six other states filed a lawsuit against the federal government in the Southern District of Texas and asked the court to issue a preliminary injunction that would prevent USCIS from adjudicating DACA applications while the lawsuit is pending. The court has not released any opinions or orders on this issue since. However, on May 8, 2018, 22 individual DACA recipients, represented by the Mexican American Legal Defense and Educational Fund (MALDEF), asked the presiding Judge Hanen to add them as party defendants in this lawsuit in an effort to more adequately address the DACA recipients’ interests. The federal judge has granted this request.

The following is a summary of DACA litigation leading up to the present time.

Regents of the University of California, et al. v. Department of Homeland Security, et al.

 In early January of 2018, a federal judge in California issued a preliminary injunction, ordering the government to continue the DACA program and accept renewing applications. The government tried to skip a step and take the case straight to the U.S. Supreme Court through “cert. before judgement”. This step is rarely accepted by the Supreme Court and only is accepted “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”. In February 2018 the Supreme Court denied the request for early review, pushing it back to the Ninth Circuit Court of Appeals in San Francisco. Meanwhile, since the federal government did not challenge this ruling, USCIS must continue to accept DACA renewal applications

Batalla Vidal, et al. v. Nielsen, et al., and State of New York, et al. v. Trump, et al.

In February of 2018, A New York district court located in Brooklyn issued a preliminary injunction similar to the one in California. It ordered that the government must continue to accept applications from those who were previously supported by DACA. The order was inspired by two pending cases. Batalla Vidal, et al. v. Nielsen, et al. was brought to a New York court by six individuals that previously benefited from DACA and the State of New York, et al. v. Trump, et al. was brought in front of the same judge by 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 5th 2018, the court delivered an opinion in this case that dismissed many of the plaintiffs’ claims. However, the court did make an order regarding the protection of personal information from DACA applications in previous years. The order refers back to the 2012 DACA policies, stating that the government may not use this information for enforcement purposes unless approved by the court prior to collecting the information. This will likely only happen if an individual is involved in a serious crime or he/she poses a national security threat.

NAACP v. Trump, et al., and Trustees of Princeton, et al. v. United States of America, et al.

In late April of 2018, a D.C. federal judge ordered that the court rules in favor of the DACA recipients in both cases and reverses the termination of the program. This decision would not only include the continuing acceptances of DACA renewals, but also initial applications. However, the decision was paused for 90 days (i.e. until July 23, 2018) to allow the government time to develop a more reasonable argument to terminate DACA. While the decision is on hold, the government is still required to process the renewal applications.

Texas, et al. v. Nielsen, et al.

On May 1, 2018, seven states filed a lawsuit against the federal government in the U.S. District Court for the Southern District of Texas, challenging the 2012 DACA program. These states had threatened that three more states would file lawsuits if the DACA program did not end in September of 2017, which resulted in the government announcing the termination of September 5th. These seven states are challenging DACA because they believe it is unlawful and violates the Administrative Procedure Act and the Take Care Clause. The court has not yet made a decision, but an initial scheduling conference be held on July 31, 2018.

For more information on how to apply for DACA, refer to National Immigration Law Center’s FAQ’s and also the USCIS website.

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