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Practice Alert: USCIS Issues Guidance Implementing DHS Memo "Reconsidering” the DACA Program

Updated August 26, 2020

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.

Background

On September 5, 2017, the Trump Administration rescinded the DACA program in a memorandum issued by then-Acting Secretary Elaine Duke.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.”

Wolf Memo Issued July 28, 2020

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.

USCIS Guidance Issued August 21, 2020

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:

  • DACA Grants Will Be Limited to One Year; Previous Two-Year Grants Remain Valid: All requests for DACA and associated employment authorization granted after July 28, 2020 will be for a validity period of one year. Fees will remain the same, though the guidance states USCIS is reviewing the feasibility of reducing the fee. However, previous two-year grants of DACA will remain valid. Additionally, two-year DACA recipients who apply for a replacement EAD due to loss, theft, or the mutilation of their prior EAD will receive a replacement EAD with the same expiration date based on the original two-year validity period.
  • New, Initial DACA Applications Will Be Rejected: USCIS will reject and return the fees for any initial DACA applications submitted by people who have never received a grant of DACA.
  • Initial Applications Filed by People Whose DACA Expired Over One Year Ago Will Be Accepted: USCIS will accept initial applications filed by people whose DACA expired more than a year prior. While the Wolf memo said that all initial DACA requests would be rejected, the USCIS guidance specifically stated that, “given the Acting Secretary's desire to maintain the status quo of the past few years, USCIS will continue to accept and adjudicate such requests notwithstanding any language in the Wolf Memorandum about rejecting ‘all’ requests for initial DACA.”
  • Renewal DACA Applications Will Be Accepted: USCIS will continue to adjudicate DACA renewal applications, including applications filed by people whose DACA expired less than a year prior to filing for renewal.
  • DACA Renewal Applications Should Not Be Submitted Too Early: The USCIS guidance stated that the agency will begin rejecting DACA renewal requests received more than 150 days prior to the expiration of the recipient's current DACA validity period. USCIS previously encouraged people to apply for renewal between 120 and 150 days prior to their DACA expiration but would generally accept and hold applications filed more than 150 days in advance.
  • Advance Parole Based on DACA Will Only Be Granted in Exceptional Circumstances: The USCIS guidance states that advance parole applications based on DACA will generally be rejected, unless there are exceptional circumstances. The guidance provides several examples of travel that could qualify as exceptional circumstances, including:
    • Travel to support the national security interests of the United States including U.S. military interests
    • Travel in furtherance of U.S. federal law enforcement interests
    • Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States
    • Travel needed to support the immediate safety, well-being, or care of an immediate relative, particularly minor children of the alien.
  • Pending Advance Parole Applications Will Be Rejected; Applicants Can Refile Under New Guidance: USCIS said it will reject and return the fees for all Form I-131 applications that have been held since July 24, 2020, stating that it would be more efficient and fair for applicants to refile their applications under the new guidance because applicants did not have prior knowledge of the new guidance. Any previously approved advance parole documents issued to DACA recipients remain valid for the specified validity period.
  • USCIS Will Continue Following Information-Sharing Policy: USCIS will continue to operate under the DACA information sharing policy outlined in the DACA FAQs.

Cite as AILA Doc. No. 18011035.