In November, a federal judge ruled that Chad Wolf, acting secretary of the Department of Homeland Security (DHS) was unlawfully appointed and that, by extension, he did not have the authority to suspend the Deferred Action for Childhood Arrivals (DACA) program in a memorandum issued in July of this year (to learn more about the details of this ruling and the DACA program, read this post). Less than a month later, that same judge—District Court Judge Nicholas Garaufis of New York—has ordered the Trump administration to fully reinstate the program. This ruling, made on December 4, states that, “Because Mr. Wolf was without lawful authority to serve as Acting Secretary of OHS, the Wolf Memorandum is VACATED.” Not only is the Wolf Memorandum now vacated, but the Department of Homeland Security (DHS) was also directed to post a public notice 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 DHS Press Release
As directed, DHS posted a public notice about the development in the DACA program. The press release notifies the public that “the U.S. Citizenship and Immigration Services (USCIS) is:
Accepting 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, and in accordance with the Court's December 4, 2020, order;
Accepting DACA renewal based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court's December 4, 2020 order;
Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court's December 4, 2020 order;
Extending one-year grants of deferred action under DACA to two years; and
Extending one-year employment authorization documents under DACA to two years.”
In addition, USCIS “will take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”
The outcome of this ruling is a victory for the immigrant community, especially for those directly affected by the July Memorandum and, prior to that, President Trump's termination of the DACA program. Since its 2012 implementation under the Obama Administration, DACA has protected hundreds of “dreamers,” undocumented immigrants who were brought to the United States as children. The New York Times reports that DACA has had generational impact: as many as 250,000 U.S.-born children may have “at least one parent who is enrolled in DACA, and that about 1.5 million people in the United States live with a beneficiary of the program.”
These numbers would be different had the Trump Administration never terminated the program in 2017; it is estimated that one million undocumented immigrants could benefit from Judge Garaufis' order to fully reinstate all the protections DACA has to offer. According to CBS News, 300,000 of those million undocumented immigrants are teens and young adults who “qualify for DACA on paper and could soon apply for the program.” To learn more about who qualifies for DACA, please refer to this post from last month.
The Future of DACA
While the outcome of Judge Garaufis' decision is a significant and celebrated assurance to many DACA recipients and prospective petitioners, the future of the program remains unclear. Within that same press release, for example, DHS notes that “it ill comply with the order while it remains in effect” but may “seek relief” from the order. A spokesperson for the department said in a statement to CNN that the decision is “clearly not sound law or logic” and that they will “work with the DOJ [Department of Justice] on next steps to appeal.” In the meantime, DACA is under attack by several Republican-led states and a hearing under U.S. District Judge Andrew Hanen of Texas took place on December 22.
Should this December 4 order be overturned before he takes office in January, President-elect Joe Biden will need to follow through with his campaign promise to bring back DACA. Even if this full reinstatement survives into the new presidency, there will remain a push to reform immigration laws so that they provide more secure protection to the nation's millions of undocumented immigrants, dreamers and non-dreamers alike.