This is the second in a series of posts on recent developments in the fight for DREAMers and what’s next for DACA.
In this post we examine what DREAMers and their allies can do following recent legal decisions in the courts. In our previous post we examined the Senate’s failure to pass legislation to protect DREAMers earlier this month. Future posts will look at the Department of Homeland Security appropriations process and how that might relate to discussions about DACA.
By Carlos Guevara, Senior Policy Advisor, UnidosUS
Over the past year, UnidosUS has pushed for a permanent legislative solution for DREAMers. We have held press conferences with bipartisan groups of Latino leaders and faith, business, and law enforcement advocates; joined a Brookings Institution panel with former DHS and INS Directors; participated in regional events with other thought leaders and influencers; and written op-eds in major publications.
But this is not the only front against the Trump administration’s cruel and arbitrary decision to terminate DACA last September. Since then, challenges have been making their way through the federal courts.
Let’s take a look.
WHAT’S HAPPENING IN THE COURTS?
- DHS v. Regents of the University of California: In September 2017, several schools in the University of California system filed suit challenging the Trump administration’s ending of DACA. The complaint included constitutional challenges and asserted that even if the administration had the right to end the policy, they did not follow the right procedure.
On January 9, Judge William Alsup of the U.S. District Court for the Northern District of California prohibited the U.S. Department of Homeland Security from implementing the DACA termination. This means that DHS must resume receiving and processing DACA renewal applications.
The Trump administration took the highly unusual step of circumventing the U.S. Court of Appeals for the Ninth Circuit to appeal the lower court’s decision directly to the U.S. Supreme Court.
However, on February 26, the U.S. Supreme Court denied the administration’s unusual appeal to stay (i.e. overturn) the injunction. This sends he case back down to the 9th Circuit Court of Appeals for decision.
— UnidosUS (@WeAreUnidosUS) February 27, 2018
For now, it appears that the injunction remains intact, and that any challenge the government might wish to make to the nation’s highest court will have to wait likely beyond this year.
- Batalla Vidal v. Nielsen; State of New York v. Trump: On February 13, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York issued a decision—the second in the country—ordering the Trump administration to stop implementing the rescission of the DACA policy. Unlike the California case, this litigation was never going to reach the U.S. Supreme Court this year, and now with the U.S. Supreme Court denying certification in the California case the government many think twice about the same tactic of appealing another DACA case directly to the U.S. Supreme Court.
WHAT DOES THIS MEAN FOR DACA HOLDERS RIGHT NOW?
The U.S. Citizenship and Immigration Services (USCIS) announced on January 13 that it would be accepting DACA requests again. Individuals should seek the advice of qualified legal service providers if one of these situations applies:
- Current DACA holders: People who currently have DACA and who have upcoming expiration dates will be able to renew assuming they continue to meet the underlying DACA requirements. But it is unclear how far ahead individuals should file the renewal requests ahead of their expiration date.
In the past USCIS encouraged individuals to file DACA renewal requests within 150 and 120 days of their expiration date. But it has also stated that it would accept renewals received with more than 150 days until expiration (see this USCIS FAQ).
- Individuals who lost DACA after Trump ended the program: According to USCIS, about 22,000 individuals were unable to or did not renew within the month window following the Trump administration’s September 5, 2017 decision to end DACA. The court rulings currently in place indicate that people who previously held DACA status but had their DACA expire since September 5, 2017 will be able to renew.
- Individuals who’ve had DACA, but lost it before Trump ended DACA: The court rulings provided that if you have ever had DACA, including individuals who have since lost it, you may re-apply for DACA protections. This means that even if your DACA expired before Trump ended the policy in September, you may continue to submit an initial DACA request, same as if the DACA termination had never take place. As always, please make sure to consult with a qualified legal service provider to assess your specific situation.
- Those who would age-in to DACA, or never had DACA: Unfortunately, individuals who have never requested DACA, either because they were too young or for other reasons, cannot apply. The courts have stated that the government is not under any obligation to accept new initial DACA requests.
WHAT RESOURCES ARE AVAILABLE TO DACA HOLDERS?
Individuals who may be able to renew their DACA consistent with these court injunctions are encouraged to renew after obtaining competent legal advice. Below are some resources on finding nonprofit legal service providers in your area, as well as possible financial assistance.
- To find a nonprofit immigration legal service provider, visit immigrationlawhelp.org. You can also find UnidosUS Affiliates who provide immigration legal services here.
- For more information about possible loans for DACA renewal application fees, click here: https://unidosus.org/Assets/uploads/files/immigration/DACA-Financing-Resources-UnidosUS.pdf
- To stay up to date on developments around DACA and immigration policy, download the free Immigo app. App Store | Android
- USCIS Frequently Asked Questions about its decision to accept DACA cases following the court injunctions: https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction