Practice Alert: What Judge Hanen’s Decision Means for My Clients

July 27, 2021

USCIS updated its FAQs related to DACA, including updated information regarding the 7/16/21 district court decision in Texas, et al., v. Texas, which found the DACA policy “illegal.”

The FAQ states:

  1. What does this mean if I have an initial DACA request currently pending with USCIS?
    • USCIS is not permitted to approve initial DACA requests or accompanying applications for employment authorization while the court order from the Southern District of Texas remains in effect. Therefore, if you have an initial DACA request pending with USCIS, your request will remain on hold in compliance with the court order. At this time, USCIS is holding cases, rather than rejecting or closing them. While USCIS holds these cases, they will remain pending, though under the July 16 court order USCIS is not able to grant the requests that are on hold. Because these cases will remain on hold while the court order is in effect, USCIS will not issue refunds for initial DACA requests that remain on hold while the court order is in effect.
    • USCIS may issue further guidance on this subject as the Southern District of Texas litigation continues.


July 21, 2021

Special thanks to AILA member Steve Yale-Loehr for drafting this update.

On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) when it created the deferred action for childhood arrivals (DACA) program in 2012. This Practice Update summarizes the court decision and subsequent administration announcements. It also indicates how to advise DACA applicants and recipients, lists several open questions, and mentions what steps AILA members should take next.

Judge Hanen’s Decision

On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that DHS violated the APA when it created the DACA program in 2012 because it exceeds the power that Congress delegated to the executive branch. Specifically, Judge Hanen held that DHS was required to go through notice and comment rulemaking under the APA. The court also identified substantive flaws with the program. The court held that DHS can continue to process DACA renewals and can accept new DACA applications, but may not approve new applications.

For a good summary and analysis of Judge Hanen’s decision, see this article.

Administration Statements After Judge Hanen’s Decision

On July 17, 2021, the White House announced that the government will appeal Judge Hanen’s decision. The White House also announced that DHS plans to issue a proposed rule concerning DACA “in the near future.”

On July 17, 2021, DHS Secretary Alejandro Mayorkas announced that DHS “remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA. The Department of Justice also intends to appeal yesterday’s order. Moreover, we will continue processing DACA renewal requests, consistent with the ruling.”

On July 19, 2021, acting USCIS director Tracy Renaud announced that all individuals whose DACA requests were granted before July 16 “will continue to have and be eligible to renew DACA, and to request and receive advance parole.” USCIS also stated that additional guidance would be issued “in the coming days.” Finally, USCIS also stated that it would publish a notice of proposed rulemaking to “strengthen and fortify DACA” through the rulemaking process. USCIS also updated the DACA page on its website to reflect Judge Hanen’s decision.

What Does Judge Hanen’s Decision Mean for My Clients?

For DACA recipients as of July 16, 2021:

  • If you have DACA now, it is still valid.
  • If you have a DACA renewal application pending, you can keep renewing until further notice.
  • If you have a pending initial DACA application, there is an indefinite freeze on that application.
  • If you are eligible for DACA but haven’t applied yet, USCIS can accept your application but can’t process it. See Batalla Vidal v. Wolf, 501 F. Supp. 3d 117 (E.D.N.Y. 2020).
  • If you have advance parole through DACA, it is still valid.
  • If you have DACA and a pending advance parole application, USCIS will still process it.

For a good Q&A from United We Dream, see this article.

Open Questions

It is unclear whether people who let their DACA status lapse for more than a year can reapply. In the past, USCIS stated that individuals in that situation should file a new initial application.

It is unclear whether DACA recipients who travel on advance parole will be allowed to re-enter the United States upon their return. They should be allowed to re-enter, just as most DACA recipients in the past successfully re-entered the United States, but we don’t have case examples yet.

It is unclear whether USCIS will cancel biometric appointments for initial DACA applicants, although anecdotal evidence suggests USCIS is doing that.

We don’t know what will happen if a person’s DACA status expires while a renewal application is pending.

Next Steps for AILA Members

AILA members should educate their clients about what Judge Hanen’s decision does and doesn’t mean. They should also encourage Congress to pass legislation to provide a permanent solution for the estimated 700,000 DACA recipients, such as the American Dream and Promise Act, which has passed the House but is stalled in the Senate. Visit this Featured Issue page for more information on what’s happening in Congress, and visit our Action Center to contact Congress. Finally, AILA members should encourage their clients and others to do the same.


July 16, 2021

In an press statement, AILA President Allen Orr and Executive Director Benjamin Johnson responded to the ruling by Texas federal judge Andrew Hanen against the Deferred Action for Childhood Arrivals (DACA) program in this statement, urging the administration and Congress to protect Dreamers.

The district court found that DHS violated the APA with the creation of DACA and its continued operation, stating that the DACA memo and the DACA program that created it are hereby vacated and remanded to DHS for further consideration.

The decision notes:
“DHS may continue to accept new DACA applications and renewal DACA applications as it has been ordered to by the Batalla Vidal court cited above, but it is hereby enjoined from approving any new DACA applications and granting the attendant status.”


January 20, 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 Memo directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate consistent with applicable law, to preserve and fortify DACA.”
  • The Memo does not make any immediate changes to the DACA program.
  • At this juncture, as stated in the December 7, 2020 update below:
    • USCIS is accepting first-time requests for DACA as well as DACA renewal requests;
    • Grants of deferred action and employment authorization under DACA are to be issued in two-year increments; and
    • USCIS is accepting applications for advance parole.
  • As of 9:44 am (ET) on January 22, 2021, no decision has been rendered on the parties’ pending motions for summary judgment before the U.S. District Court for the Southern District of Texas in Texas v. United States, 1:18-cv-00068. The State of Texas and other plaintiffs are seeking an order declaring the DACA program unlawful and setting aside the June 2012 Napolitano Memorandum creating the DACA program.


December 7, 2020

On December 7, DHS and USCIS updated their websites to comply with the court’s order. The notices state that, effective December 7, 2020, USCIS is:

  • Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  • Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  • Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  • Extending one-year grants of deferred action under DACA to two years; and
  • Extending one-year employment authorization documents under DACA to two years.

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.”


December 4, 2020

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.


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.