DACA or Deferred Action for Childhood Arrivals is a policy announced in 2012 and over the last eight years has enabled more than 800,000 people who entered the United States before the age of 16, are in school or graduated, and meet other requirements to receive a type of prosecutorial discretion called “deferred action” and work authorization. The Trump administration attempted to end DACA beginning in 2017, but litigation in federal courts, including the Supreme Court, allowed DACA to survive for some. On June 18, 2020, the Supreme Court ruled that the way DACA ended was unlawful, and signaled that DACA should be restored in full. But the Trump administration did not follow suit, and litigation ensued.

On Friday, December 4, U.S. District Judge Nicholas G. Garaufis from the U.S. District Court for the Eastern District of New York, ruled that DACA must be reinstated immediately. This is significant and should have been the case in June, after the Supreme Court ruled that the way DACA ended was unlawful. But what happened after the Supreme Court decision is that the agency (DHS) did not comply with the Supreme Court ruling and instead issued a memorandum authored by Acting Secretary Chad Wolf that limited DACA to renewals (those who had DACA before) and cut the period a person will be protected from two years to one year. Judge Garaufis held that this memorandum is invalid because ‘Mr. Wolf was without lawful authority to serve as Acting Secretary of DHS.’

What Friday’s decision does is require DHS to restore DACA in full to the way it existed before September 5, 2017. This means that DHS must: process requests for first time DACA applicants; return the DACA period from one year to two years, and restore travel permission for DACA recipients.

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The case is called Batalla v. Wolf and was led by the Worker and Immigrant Rights Clinic at Yale Law School under the supervision of the amazing Muneer Ahmad, Marisol Ohihuela, and Mike Wishnie, co-counsel National Immigration Law Center, Make the Road New York, and cooperation from the very talented Karen Tumlin from the Justice Action Center. The court order requires DHS by Monday, December 7 to ‘post a public notice, … 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.’

Restoring DACA and following the Supreme Court and a federal court order is a logical next step for the current administration. President-Elect Joe Biden has committed to in the first 100 days of his administration. The legal history and foundation for DACA runs deep and should continue to guide how a future administration uses prosecutorial discretion in immigration cases. Ultimately however, only Congress can provide a pathway for durable and permanent legal status for dreamers and their families.

You can visit the archive of DACA resources from the Center for Immigrants’ Rights Clinic at Penn State Law here: https://pennstatelaw.psu.edu/immigration-time-of-trump#DACA/DAPA

I also recommend the latest book from Michael A. Olivas, Perchance to Dream: A Legal and Political History of the DREAM Act and DACA (NYU Press), https://nyupress.org/9781479878284/perchance-to-dream/

For some specific resources about the Supreme Court ruling and aftermath, see:

UPDATE (12/8/2020): On December 7, the U.S. Citizenship and Immigration Services posted information on its website responding to the court order and noting that will do the following:

Ø Accept first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017;

Ø Accept DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017;

Ø Accept applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017;

Ø Extend one-year grants of deferred action under DACA to two years;

Ø Extend one-year employment authorization documents under DACA to two years.

Written by

Law professor @PennStateLaw, writes on immigration, diversity & discretion; author of Beyond Deportation and Banned @NYUpress www.beyonddeportation.com

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