Status Of The “Dreamers”? It’s All Right For Now, But Still Very Much Up In The Air

by Constangy, Brooks, Smith & Prophete, LLP
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Constangy, Brooks, Smith & Prophete, LLP

Last week, a federal judge in San Francisco preliminarily blocked the Trump Administration’s plan to commence an orderly termination of the Deferred Action for Childhood Arrivals program by March 5. The court ruled that, pending further review by the U.S. Court of Appeals for theNinth Circuit, the DACA Program be for the most part left in place nationwide, but not as to new applications from individuals who have not yet received deferred action.

Although the court’s Order is good news for the Dreamers who have benefited from DACA, the longer-term prospects of Dreamers are still in doubt. First, the injunction is only preliminary – it is not a final judgment. As we went to press, the U.S. Department of Justice had already appealed to the Ninth Circuit and, additionally, announced that it would seek intervention from the U.S. Supreme Court.

Second, a legislative solution for DACA seems less likely since the President’s offensive comments about Haiti and some African countries that were allegedly made during a negotiation with a number of senators, including Sens. Dick Durbin (D-Ill.) and Lindsey Graham (R-SC).

Finally, the federal government will shut down at 12:01 a.m. this Saturday unless Congress passes a spending bill by Friday. But Democrats, whose votes are needed, are saying they will not vote for a spending bill unless it protects Dreamers.

The preliminary injunction

After the Trump Administration announced on September 5, 2017, that DACA would be ending,a lawsuit challenging that decision was filed against the Department of Homeland Security by the Regents of the University of California and Janet Napolitano, President of the University of California.(The case was subsequently consolidated with several other lawsuits challenging the Administration directive. The plaintiffs in the other lawsuits included several states, a municipality, a union local, and a number of individual DACA beneficiaries.)

The plaintiffs argued that the Administration’s decision was based on the Attorney General’s misinterpretation that DACA – issued by executive order by President Obama – was an unconstitutional exercise of presidential power. In last week’s decision, Judge William Alsup concluded that the plaintiffs were likely to succeed on most of their claims and that students and employees of the plaintiffs, as well as DACA beneficiaries nationwide, would be irreparably harmed if DACA were terminated at this time and in this manner.

The court’s order directs the DHS

to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission [of DACA] on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature [the right to travel abroad and return to the United States] need not be continued for the time being for anyone; and (3) that DHS may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.

Anticipating a speedy appeal by the Trump Administration, Judge Alsup also certified for immediate review by the Ninth Circuit the issues raised by the Administration, including whether the DHS has discretion to rescind DACA that cannot be reviewed by a court, and whether the plaintiffs have standing to sue. As already noted, the Administration has announced that it intends to seek intervention directly from the Supreme Court while its Ninth Circuit appeal is pending.

Until further notice, DACA will continue subject to the terms of Judge Alsup’s order:

*DACA will remain in effect, for the most part, for current beneficiaries.

*The DHS is not required to consider new applications for deferred action.

*Even current beneficiaries will not necessarily be entitled to advance parole.

Background

As we have previously reported, the “Dreamers” are individuals who were brought as children to the United States without immigration status. Although they are not legally in the United States, the Dreamers have spent most of their lives here and have little, if any, knowledge of their parents’ nations of origin. Many of them are now adults who are in the U.S. workforce.

In 2012, after Congress failed to address the status of Dreamers, President Obama instituted the DACA program by Executive Order. The DACA program gave approximately 800,000 beneficiaries deferred action from deportation, the right to employment authorization, and the right to travel abroad (advance parole) and to return to the United States.

On September 5, 2017, the Trump Administration announced that DACA was ending and, as stated by Acting DHS Secretary Elaine Duke, would be terminated “in an orderly fashion that protects beneficiaries in the near-term while [the Administration would be] working with Congress to pass legislation.” According to the DHS, there were two rationales for the decision to end DACA: First, Attorney General Jeff Sessions believed that DACA was implemented by an unconstitutional exercise of Presidential power that circumvented immigration laws and the legislative process. Second, six states had successfully challenged a similar Executive Order issued by President Obama, the Deferred Action for Parents of American and Lawful Permanent Residents, or “DAPA.” The attorneys general of these states said that they would “amend [their] DAPA lawsuit to include a challenge to DACA” if DACA was not rescinded by January 9, 2018.

Under the DACA transition period that began on September 5, DHS rules provided that pending applications accepted as of that date would be processed. The rules also provided that the DHS would process renewal applications filed by October 5, 2017, for persons whose DACA benefits expired or would expire between September 5, 2017, and March 5, 2018.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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