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AILA Doc. No. 18011035 | Dated January 22, 2021
Special thanks to AILA member, Patrick Taurel, LLP for drafting this alert.
On January 20, 2021, President Biden issued a Presidential Memorandum entitled, “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)” (“The Memo”).
The notices also state that 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.”
On December 4, 2020, a U.S. District Court for the Eastern District of New York ordered DHS to fully reinstate the DACA program, finding that Wolf’s July 2020 memo reconsidering the DACA program must be put aside. The order is effective immediately, and DHS is required by the order to post a public notice stating that it is accepting new, initial DACA applications, work permits are valid for two years, and DACA recipients are eligible to apply for Advance Parole.
The court had previously held in a November 14, 2020, decision that Chad Wolf was not lawfully serving as DHS Acting Secretary under the Homeland Security Act when he issued the July 28, 2020, memorandum suspending DACA following the Supreme Court decision in DHS v. Regents of the University of California.
On July 28, 2020, Acting DHS Secretary Chad Wolf issued a memo rescinding prior memos that purported to terminate the DACA program and stating that he will reconsider the program’s future in light of the Supreme Court’s decision in DHS v. Regents of the University of California. On August 21, 2020, USCIS issued guidance implementing the Wolf memo. This practice alert provides background on the Supreme Court decision and explains the impact of the Wolf memo and USCIS guidance.
On September 5, 2017, the Trump Administration rescinded the DACA program in a memorandum issued by then-Acting Secretary Elaine Duke. Multiple lawsuits were soon filed challenging the termination, and several courts issued injunctive orders directing the government to partially maintain the DACA program. For more information on these legal challenges, see our litigation tracking page, DHS v. Regents of the University of California. On June 28, 2019, the Supreme Court consolidated and granted certiorari in several of these cases. It heard oral argument on November 12, 2019.
On June 18, 2020, the Supreme Court blocked the government’s attempt to terminate DACA and remanded the case for further consideration. The 5 to 4 majority opinion ruled that DHS’s rescission violated the APA as an arbitrary and capricious final agency action because the agency failed to consider “important aspects of the problem.” Specifically, the Court concluded that DHS failed to consider whether to continue only the deferred action part of the DACA program and that “omission alone renders [the decision] arbitrary and capricious.” In addition, the Court found that DHS failed to address the considerable reliance interests created by the DACA program, such as the impact on Dreamers and their families, if the agency terminated DACA.
Importantly, Justice Roberts noted that the parties agreed that DHS may rescind DACA and emphasized that the court is not deciding whether DACA or its rescission are “sound policies.” Ultimately, the Court rested its decision on well-settled principles rooted in government accountability as codified in the APA: the agency failed to provide a reasoned explanation for its action. Accordingly, the Court remanded the cases for DHS to “consider the problem anew.”
On July 28, 2020, Acting DHS Secretary Chad Wolf issued a memo rescinding two prior DHS memos in light of the Supreme Court’s decision in DHS v. Regents of the University of California: the September 5, 2017 memo issued by then-Acting Secretary Duke that purported to terminate the DACA program and the June 22, 2018 memo issued by then-Secretary Nielsen that purported to provide “further explanation” for the DACA rescission.
In his July 2020 memo, Wolf stated that he plans to reconsider the DACA program’s future and, in the interim, instructed USCIS to reject all pending and future initial requests for DACA, reject all pending and future applications for advance parole absent exceptional circumstances, and limit the period of DACA renewals to one year. Wolf justified these interim actions by claiming that the DACA program “presents serious policy concerns that may warrant its full rescission,” and stating that he is “making certain immediate changes to the DACA policy to mitigate [his] enforcement policy concerns while [he] conduct[s] a full and careful consideration of a full rescission.” Wolf lists his “enforcement policy concerns,” which include Congress’s failure to act, use of discretion in the DACA program, and sending “mixed messages” on enforcement of immigration laws.
On August 21, 2020, USCIS issued a memo providing additional guidance necessary to implement Wolf’s July 2020 memo. Together, these memos outline the following policies:
Cite as AILA Doc. No. 18011035.
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