Federal Injunction Results in Reinstatement of DACA Application

By Tejas Shah and Karlie Dunsky - Franczek Radelet P.C.

January 15, 2018

In response to last week’s nationwide injunction entered by Judge William Alsup of the Federal District Court in San Francisco, U.S. Citizenship and Immigration Services (USCIS) announced on Saturday that it has resumed acceptance of renewal requests for Deferred Action for Childhood Arrivals (DACA) program benefits from eligible individuals. The program has, at least temporarily, been restored to the same status it held prior to the program's rescission in September 2017 by the Trump administration, with two important distinctions:

• Individuals who have never previously been granted DACA protection may not apply for initial protection.

• USCIS is not required to consider advance parole requests for DACA recipients.

Based on the injunction, individuals whose previous DACA protection has lapsed may now be eligible to renew their DACA protection. Additionally, DACA recipients whose protection expires on or after March 5, 2018, the expirations cut-off date set forth by the Trump administration announcement last September, may also be eligible to file renewal requests if they meet other filing guidelines.

Those assessing their renewal eligibility should know that, while requests for employment authorization based on DACA can be filed no more than 6 months in advance, DACA renewals have reportedly been filed and considered well in advance of 6 months.

Of course, the filing of a DACA and work authorization renewal in this fluid situation does risk the loss of the filing fees associated with the applications if the Department of Justice successfully moves to set aside the injunction through challenge to a higher court. As a result, individuals whose DACA protections expire later in the 2018 calendar year should consider seeking legal advice on the possibility of filing a renewal application.

Litigation Background:

This injunction stems from a lawsuit filed by the State of California and a host of other plaintiffs, including other state governments and individual DACA recipients, challenging the administration’s elimination of the DACA program on September 5, 2017, based on a violation of the Administrative Procedures Act. The plaintiffs argue, among other claims, that the administration’s actions were arbitrary, capricious, and an abuse of discretion. In his order issuing a preliminary injunction, Judge Alsup held that the plaintiffs had demonstrated a likelihood of success on the merits of their claim. He found that many of the reasons cited for the program’s termination appeared to be pretextual, and disagreed with the process that the Trump administration followed to terminate the program. Given the interest in the uniform, nationwide enforcement of immigration laws, and the impact of terminating the five-year program on DACA recipients, their employers, and educational institutions, he held that a nationwide injunction preventing the federal government from terminating the program on the terms he set forth was an appropriate remedy.

Employer Insights:

As mentioned, this is a fluid situation; the Department of Justice has signaled its intention to appeal the injunction. Nevertheless, this action may offer a limited window for DACA recipients who were excluded from renewal based on the rescission announcement to file a renewal request.

Employers of DACA recipients who are aware of their DACA protection and impending loss of protection should consider communicating with their employees about this temporary reprieve, as it may offer a basis for those individuals to extend their work authorization and DACA protection.

A copy of the USCIS announcement implementing the mandate set forth in this injunction is available here.