By Attorneys Sara N. Cross and Eric R. Welsh
On Friday, August 3, 2018, Judge John D. Bates of the Federal District Court for the District of Columbia issued an order, declaring that the Deferred Action for Childhood Arrivals program (DACA) must be restored. President Trump attempted to terminate the program back in September 2017, but a broad-based coalition of academic and corporate entities (including the NAACP, Microsoft, and Princeton University) filed a lawsuit, challenging the rationale that the administration had used to justify the termination. The District Court ruled in favor of the plaintiffs, ordering the U.S. government to continue to process renewals and begin accepting first-time applications once again. Judge Bates had reached the same decision back in April, but he stayed his order for 90 days to give the government an opportunity to present him with any cogent reason to end DACA. The government failed to persuade the Judge, who found the government’s rationale to be “arbitrary and capricious.” If the government does not appeal, the ruling becomes final on August 23, 2018.
Friday’s ruling by Judge Bates comes just as another DACA lawsuit is gearing up for a decision, one which opposes the DACA program and which was filed right after Judge Bates issued his original order in April 2018. This lawsuit was filed in the U.S. District Court for the Southern District of Texas, by seven states: Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia. The seven states lawsuit argues that all DACA grants should be immediately rescinded because they are unlawful. In their complaint, the states argue that “the executive unilaterally conferred lawful presence and work authorization on otherwise unlawfully present aliens, and then the executive used that lawful-presence ‘dispensation’ to unilaterally confer United States citizenship.” As a grant of DACA provides no direct path to U.S. citizenship or even LPR status, it remains to be seen how the DACA program has accomplished what this lawsuit alleges. Ultimately, this lawsuit seeks to block the government from issuing or renewing DACA grants, so as to force the program to phase out completely within two years. If successful, this lawsuit would strip over 124,000 Texans of their ability to work lawfully, go to school, or remain in the U.S. with their families. Such an action would severely disrupt countless communities and businesses, likely causing significant harm to local and state economies.
Currently, the DACA program protects around 700,000 young people who would otherwise be deportable. President Obama created DACA in 2012 to provide some measure of relief to “dreamers,” the young people left unprotected after Congress had failed for almost two decades to pass the legendary “DREAM Act.” “Dreamers” are young people who grew up in America—attending school, obeying the rules, and behaving for all intents and purposes like any other American—but who cannot legalize their status because they were brought to the U.S. illegally, often when they were infants, unable to choose their lot in life. Once the Department of Homeland Security (DHS) grants an application for DACA, the recipient may remain in the U.S. and work lawfully for a period of two years, and that permission can be extended indefinitely by the DHS in two-year increments. The DACA recipient can obtain a social security number, and, in some states, a driver’s license, and may qualify for in-state resident status for college tuition.
If DACA begins accepting new applications on August 23, 2018, any eligible applicant may apply, both those seeking a renewal and those applying for the first time. To be eligible, an applicant must: (1) have come to the U.S. before reaching his or her 16th birthday; (2) have been physically present in the U.S. on June 15, 2012; (3) have continuously resided in the U.S. since January 1, 2010 up until the present; (4) have entered the U.S. without inspection or was out of status on June 15, 2012; (5) be under the age of 31 as of June 15, 2012; and, (6) be currently enrolled in school or have previously obtained a graduation certificate, degree or GED.
In addition to the general eligibility criteria, there are certain disqualifying factors that may affect eligibility, including the existence of a criminal record or a derogatory immigration history. The DHS recently issued policy guidance, directing the USCIS—the agency that decides applications like DACA—to refer an applicant to immigration court (deportation) if an application is denied and the applicant is out of status. For these reason, it is critically important for any person interested in applying for DACA or any other immigration benefit to consult with a knowledgeable immigration attorney before applying.
