#ImmigrationWatch2018 | #Update to Topic #1: DACA | D.C. District Court Brings DACA Back (?) What You Need to Know!
The D.C. District Court ruled this week that the Trump Administration must resume accepting renewal AND new Deferred Action for Childhood Arrivals (DACA) applications. Recently, two other federal courts ordered the administration to continue processing renewal DACA applications. See, CASA de Maryland, et al. v. Dept. of Homeland Security, et al., 8:17-cv-02942 (D.Md.), and Batalla Vidal, et al. v. Nielsen, et al., 1:16-cv-04756 (E.D.N.Y); State of New York, et al. v. Trump, et al., 1:17-cv-05228 (E.D.N.Y.).
So does this mean that DACA is back for good?
Possibly. It is certainly a step in that direction, but DACA’s future is far from certain. Here is what you need to know about the D.C. District Court ruling:
The D.C. District Court’s order that the Department of Justice (DOJ) continue accepting new DACA applications will not go into effect for 90-days.
The judge issued this 90-day stay (or pause) to allow the DOJ an opportunity to explain how it reached the conclusion that DACA is unlawful.
The judge based this ruling on the fact that the Attorney General Jeff Session’s memo rescinding DACA concluded that DACA violated statutory and constitutional law, but failed to adequately explain how this decision was reached. The judge found that the failure to provide this reasoning means that the DOJ’s decision was “arbitrary and capricious,” and thus invalid under the Administrative Procedure Act (APA).
The Judge did not reach the issue of whether or not DACA is constitutional. Rather, the Judge found that the DOJ’s action to rescind DACA to be unlawful. Although the DOJ has broad authority over enforcing immigration laws, this type of agency action is still reviewable and must comport with our basic principles of fairness, due process and the APA.
Why did the Judge give DOJ 90-days to justify the recession of DACA?
The short answer is to give the DOJ a chance to explain why it concluded that DACA is unlawful. Why would the judge allow this? Right now, first time DACA applications are not being accepted. Had the Judge not stayed the vacatur, there would be an influx of new applications. If the DOJ eventually did provide a valid reason for rescinding DACA during the course of this litigation, it would create confusion and be very disruptive.
Keep in mind, the Judge could have also ruled the DACA rescission to be unlawful but not vacate it while the case proceeded forward. However, the Judge weighed this concern against the concern that every day the DOJ does not accept new DACA applications, eligible applicants are at risk of being placed into removal/ deportation proceedings. The Judge thus opted for a middle ground which gives the DOJ 90-days to justify the recision of DACA or the recession will be automatically revoked, thereby reinstating the DACA program.
What does this mean if you are hoping to apply for DACA for the first time?
Right now, only renewal DACA applications are being accepted. If the DOJ does not provide a valid reason for declaring DACA unlawful within 90-days, then the DOJ is supposed to resume accepting initial DACA applications as well. However, it is important to note that pending litigation in other jurisdictions, as well as an appeal of this decision, are still on the table, which can delay or derail the DACA program restart. It is highly recommended that you speak with an experienced immigration attorney if you are thinking of filing a DACA application.
But wait, there is a twist!
To complicate matters even further, less than a week after Judge Bate’s ruling, 6 states sued the Trump Administration claiming that DACA is unconstitutional and it should be terminated. This lawsuit claims that DACA is unlawful, whereas the challenge in the D.C. District Court and other Federal Courts across the country (including the two courts that ordered the DOJ to resume accepting renewal DACA applications a short time ago) claim that the DOJ’s decision to end DACA was unlawful. This means that there is a very real possibility that one court will rule DACA to be unlawful, while another court will directly contradict this ruling by finding that ending DACA is unlawful. It is too soon to predict how this all will end, but one thing does seem fairly certain, the fate of DACA will likely end up in the hands of the Supreme Court.
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