Despite DACA Reinstatement, Future Isn’t Certain

The very act that reinstated DACA from restrictions could be the act that terminates it

The Deferred Action for Childhood Arrivals program will be reinstated, undoing changes and efforts by the Trump administration to remove the program, due to an order by a federal judge. Despite the victory for DACA recipients — immigrant advocates warn that another case in federal court could undo this small victory with more far-reaching consequences.

The DACA program, created in the 2012, allows certain individuals brought illegally into the U.S. as children to request deferred action for a period of time subject to renewal, according to the U.S. Citizenship and Immigration Services website. The program, overseen by the U.S. Citizenship and Immigration Services and the Department of Homeland Security, has been challenged in court multiple times throughout the Trump administration with the goal of limiting or removing it, even reaching the U.S. Supreme Court which ordered the program must continue.

On Dec. 4, Judge Nicholas Garaufis of the Eastern District of New York ordered DHS to begin accepting application and renewals for the program, which had been halted in a memo from Acting Secretary of Homeland Security Chad Wolf. 

In November, a court found Wolf wasn’t lawfully serving in his role because DHS failed to follow the order of succession as lawfully designated under the Homeland Security Act, and the Wolf memo was vacated.

For the Rocky Mountain Immigrant Advocacy Network, a nonprofit serving low-income individuals in immigration proceedings, the announcement of DACA applications and renewals resuming means working to submit as many applications and renewals as possible in the time that DACA is still open, said Ashley Harrington, RMIAN’s DACA project head.

“We’re super excited about the most recent court order,” Harrington said. She added that those who had previously applied for DACA renewals in the period under the Wolf Memo limiting renewals to a single year are now extended to the two years under the original DACA specifics.

The organization was already planning for an increase in work for their DACA-eligible clients with the new Biden administration coming in January, but the announcement expedited the work by a month, she said. She said she was pleased to see that UCIS appears to be complying with the order.

In addition to voiding the Wolf Memo, Garaufis also certified a “DACA Class” of all individuals who either are or will be eligible for deferred action as it existed prior to “attempted recessions.” In addition, the court certified a pending application subclass for those who had been an applicant for DACA for either initial or renewal applications pending between June 30 and July 28.

Additionally, Garaufis ordered in the Dec. 4 order the DHS to post public notice “prominently” on the DHS website announcing it is accepting first-time requests or considerations for DACA, renewal and advanced parole requests based on the terms of the DACA program.

Alex Ogle, communications manager of the Colorado Immigrant Rights Coalition, said CIRC is excited about the reinstatement of DACA. “It was completely outrageous for the Trump administration to go after this program,” he said. Now that the renewals, applications and advanced parole is open again, something not seen in some time, it is very exciting for anyone with DACA both in Colorado and around the country.

CIRC offers a legal services program that helps process DACA applications and renewals. Since the news about DACA broke, CIRC has been inundated with people wanting to apply for the first time, leaving the organization trying to determine how best to handle all the requests for help.

However, this return to DACA’s original operation may not be permanent — a Texas case is questioning whether President Barack Obama exceeded his authority by enacting DACA. The next hearing in that case is scheduled for Dec. 22. RMIAN’s Harrington said it is possible, either as a stay of Garaufis’s order — or as a result of any ruling in the Texas court — “this could all get stopped again.”

According to a June article in The Texas Tribune, the suit was filed in 2018 by Texas Attorney General Ken Paxton and was heard before a federal district judge, however, the judge declined to stop the program in August 2019 ruling that while there were some valid arguments in the case, they took too long in seeking a temporary injunction. The case was “put on hold.”

U.S. District Court Judge Andrew Hanen’s 2018 memo opinion and order notes that it was asked to enjoin issuing or renewing any DACA permits in the future. “If this relief is granted, and ultimately if the relief becomes permanent, it could have the effect of terminating the DACA program — a result the Defendant-Intervenors vehemently oppose.”

A 2018 press release from the Texas attorney general’s office states that the court found that the DACA program may be contrary to the APA. Paxton leads a coalition of multiple states.

Harrington, Ogle and Hanen all agree that congressional action is the only way to address the constantly changing waters of DACA. “The only way to end that is an act of Congress that actually sets up a pathway toward permanent residency and citizenship for these kids,” Harrington said. “That’s what we’ll look for.”

“The court will not succumb to the temptation to set aside legal principles and substitute its judgment in lieu of legislative action,” Hanen’s order states. “If the nation truly wants to have a DACA program, it is up to Congress to say so.”

CIRC’s stance is that DACA in current state is a “Band-Aid” fix — not a permanent solution, Ogle said. The solution is that for Congress and the president to pass immigration reform granting permanent citizenship to all DACA members.

“It’s just not acceptable for people to have their lives in limbo every two years,” Ogle said. “No one can plan their lives that way or live a normal life with that kind of status.”

After taking the Oval Office in January, CIRC wants Biden and Congress to work toward immigration reform on day one, Ogle said. 

The hope is for this order to stay and for a “good” outcome from the case in Texas, but ultimately the goal for RMIAN is the pathway to citizenship and residency, Harrington said.

“The court believes that these additional remedies are reasonable,” the Dec. 4 order states, adding later that the court reserved the right to impose other “remedies” should they be needed. 

— Avery Martinez

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