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October 2018 Issue

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The Future of DACA and Next Steps

Liz Profumo, D’Alessio Law Group

On August 3rd a federal judge announced that the Deferred Action for Childhood Arrivals program, the Obama era program commonly known as DACA, should be fully restored. DACA allows for more than 800,000 undocumented immigrants to live, study, and work in the United States, and has faced various uphill battles in the last year since the Trump administration announced that it would be terminated in late 2017.

Federal Judge John Bates announced that the Trump administration had failed to explain its reasoning to end the program adequately and that he would give the Trump administration an additional 20 days to respond to this appeal.

“A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, will not do. The court, therefore, reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside,” said Judge Bates of a memo submitted by Department of Homeland Security Secretary Kristjen Nielsen.

This news follows The Center for Immigration Studies’ federal lawsuit against the federal government requesting the federal government to disclose information on the hundreds of thousands of immigrants holding DACA status.

The Trump administration will be given the opportunity to ask the DC Circuit Court of Appeals to pause the Bates’ order indefinitely while the circuit court considers an appeal on the ruling itself.  In effect, the Trump administration will be requesting a preliminary injunction against the Judge Bates’ order, rather than the administration policy. 

DACA, in the meantime, has been placed in a state of legal limbo.  That limbo may come to an abrupt end in the next few weeks if Judge Andrew Hanen in the Southern District of Texas decides to kill the DACA program.  The issue of this week's arguments will be whether Judge Hanen should issue a nationwide injunction of his own. Many speculate that it is likely that he will strike down the program because of his ruling against an attempted expansion of DACA during President Barack Obama’s second term. 

If Hanen grants a nationwide injunction, it will stop the Trump administration from continuing to implement DACA in any way.  This would be in direct conflict with the orders from judges in California and New York that ordered the administration to continue processing renewals. 

This issue will either be left to the administration to decide or will go to the Supreme Court.  The general rule is that when different federal judges issue conflicting orders in a case, it becomes more likely that the Supreme Court will take up the case to sort out the inconsistency.

The next few weeks will determine whether immigrants protected under the program will remain safe for a few more years, or whether they’ll start becoming vulnerable to deportation in the near future.  The current legal trajectory leaves DACA recipients faced with the tough decision of when they should apply for another DACA renewal, knowing it could be their last.

“The uncertainty of when the program will end creates incredibly stressful and perverse incentives where people have to wonder if they should wait another nine months or whether they should apply now,” says Todd Schulte of the advocacy group FWD.us. Advocates like him are encouraging people to apply now.

Currently, anyone with a valid DACA work permit can apply for a renewal, even if their current permit doesn’t expire for months or years.  Protections from deportation and work permits under DACA are good for two years after they are issued. 

If your renewal application is granted while you still have six months on your last work permit, you have six months of overlap.  If you have the six-month overlap, you’ll be able to work legally in the country for 18 months. So generally, there’s an incentive to apply for renewal as close to the end of your first two-year grant as possible.

If you are currently in the country under the DACA program or are interested in how this news affects you or others, please reach out to our designated D’Alessio Law Group professional at +1310.909.3934.


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Liz Profumo is a Partner at D'Alessio Law Group and serves on the Board of Governors at the CCBA. She can be reached at liz@dlgimmigration.com 

 

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