11 January 2018
By order dated Tuesday, January 9, 2018, US District Court Judge William Alsup denied the Department of Homeland Security’s (“DHS”) motion to dismiss five lawsuits filed in the US District Court for the Northern District of California (San Francisco) challenging Acting Secretary of Homeland Security Elaine Duke’s September 5, 2017, decision to end the Deferred Action for Childhood Arrivals (“DACA”) program. Judge Alsup also issued a preliminary injunction requiring the government to maintain the DACA program under the terms and conditions that were in effect before the September 5 order, with limited exceptions.
Under the exceptions: 1) DHS need not process new applications from applicants who have never received deferred action; 2) travel document requests need not be processed for the time being; and 3) DHS “may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.”
On September 5, 2017, Acting Secretary Duke rescinded the DACA program created in July 2012 by order of then-Secretary Janet Napolitano.1 Acting Secretary Duke’s order created a “window” for those with DACA benefits (including work authorization) valid through March 5, 2018, to apply for renewal by October 5, 2017, or face a loss of work authorization and possible removal proceedings. No renewals would be available for those whose benefits expire after March 5, 2018.
The decision to end DACA was challenged in several federal courts by state attorneys general, organizations and individual DACA recipients, including the five cases mentioned above. The phase-out announced by DHS had been seen by many as a move by the Trump administration to use DACA as a political bargaining chip, with the administration claiming that DACA was unlawful from its inception and arguing that any legislation to provide relief for the DACA population (also known as “DREAMers”) would have to include funding for a border wall.
The DACA program has provided work and temporary residency authorization for nearly 700,000 beneficiaries who were brought with their families to the United States as children.2 DACA has allowed these young people to work and study in the United States free from the threat of deportation. It has been reported that over 97 percent of the DACA recipients are in the US work force or in school.
What Should DACA Recipients Do Now?
The court has directed the government to post reasonable public notice that it will resume receiving DACA renewal applications, but it is not clear when that will happen given the possibility of government appeals. DACA beneficiaries who might benefit from renewal should not take action until the situation is clarified.
On the Horizon
Judge Alsup’s ruling is by its nature temporary, operative only until the district court issues a final ruling on the merits. Moreover, the government is certain to appeal this preliminary ruling to the Ninth Circuit and, if it loses there, to the Supreme Court. And it may well seek a stay of the district court’s order pending the decisions by those courts.
Supporters of DREAMers have made clear that statutory protection is essential because of the uncertain nature of any judicial relief. A number of Democrats have stated that they will not support continued funding of the government (which runs out on January 19) unless the measure also includes protection for DREAMers.
Legislative discussions have been underway, and on the same day as the ruling, President Trump hosted a bipartisan meeting to discuss the issue. Additional developments on both the judicial and legislative fronts are likely in the coming weeks.
1 In an interesting twist, former Secretary Janet Napolitano is a named plaintiff in the lawsuits in her official capacity as president of the University of California.
2 Some 689,000 individuals have been provided DACA benefits since 2012.