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Is it Time to Reapply for DACA?

By Ann Fischer

With continuing efforts to clarify the status of DACA, decisions from two combined court cases heard in late April determined that the government failed to adequately explain their reason for the 2017 memo which rescinded DACA. The cases, NAACP v. Trump and the Trustees of Princeton v. USA, were heard in Federal Court for the District of Columbia by Judge John D. Bates.

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A Review of DACA

As you may remember, DACA, or the Deferred Action for Childhood Arrivals, was put into place by former President Obama to offer children of illegal immigrants (or “Dreamers”) protection from deportation. In September of last year, the Department of Homeland Security (DHS) acting secretary sent a memo on behalf of the Trump administration rescinding DACA. This was met with public outcry and legal proceedings.

Then in January of 2018, a case against the Department of Homeland Security (DHS) ruled that anyone who had DACA status when the program was rescinded on Sept. 5 could still renew it. President Trump replied by bypassing the 9^th Circuit Court of Appeals and asking he U.S. Supreme Court to directly review the injunction, but the Justices rejected the Trump administration’s petition to hear an appeal of a U.S. district court’s DACA-related decision without the case first being reviewed by the court of appeals. Further review was to be concluded in late April.

The Latest on DACA….

The D.C. Federal court ruling deferred to the Administrative Procedure Act (APA) which requires adequate explanation of policy changes in policies such as DACA. The court further ruled that:

1. The court was within their jurisdiction to hear the APA claims and that DACA’s recession was “arbitrary and capricious” because the government failed to adequately explain its conclusion that the program was unlawful. Judge Bates is quoted as saying, “Neither the meager legal reasoning nor the assessment of the litigation risk provided by DHS to support its recession decision is sufficient to sustain termination of the DACA program.”
2. The decision to rescind DACA will be vacated and remanded to DHS.
3. The order is stayed for 90 days to allow the government to better explain its rescission decision.

This means that within the next 90 days, if the courts cannot justify the action of rescinding DACA, new applicants as well as renewals may be once again processed.

The ruling may also apply to those with advanced parole(AP), a permit issued to a non-citizen without a green card that entitles them to return to the U.S. after traveling abroad.  Currently, immigrants and green card holders, even those married to a U.S. citizen, are often barred for reentry or must file a special application to return. Changes in DACA would give immigrants AP so they may leave the country and reenter lawfully.

So Can I File?

As a result of the latest court case, immigrants have 90 days from the April 24 court date to file for DACA. This is the period of time that the government has to justify its legal position for cancelling the program.

Meanwhile strong arguments exist on both sides of DACA. Opponents of the program question the action from the beginning, claim the original legislation did not have a proper period of review and say the APA cannot overrule an executive order. Defenders of DACA believe APA has been violated and therefore cancelling the program is not within the law.

As the questions and answers surrounding DACA continue to unfold, Gardi, Haught, Fischer & Bhosale LTD continues to stay abreast of the latest on immigration to help clients with their individual cases. If we can help with yours, request a free consultation below.

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