On Tuesday, January 9, 2018, U.S. District Judge Williams Alsup, sitting in the Northern District of California, ordered the Trump administration to begin accepting DACA renewal applications once again. You may read the 49-page decision here.  The attorneys at Saev Hernandez Immigration Practice read the order in its entirely, and we provide a summary below.

What did the court order?

Judge Alsup ordered that the Department of Homeland Security (DHS) keep the DACA program open all around the United States on the same terms as existed before the program was terminated on September 5, 2017.  The difference is the judge’s order only applies to DACA renewals, and does not address:

  • New DACA applications
  • Advanced parole applications based on DACA status, and
  • The decision notes DHS may exercise discretion as to decisions on individual cases.

In the final pages of the decision, Judge Alsup also ordered the agency to post a procedure consistent with his decision for accepting new DACA renewals.  Note as of the time of writing, DHS has not posted a procedure.

Should I Apply to Renew DACA and When?

Individuals whose DACA status expires during the next six months should immediately contact their immigration attorneys to discuss the possibility of applying to renew.  Some people may decide to file renewal applications right away, even before a process has been announced by DHS to comply with the court order.  Other people may opt to wait until a process has been announced. We encourage DACA recipients interested in renewal to call our office at 615-647-8628.

What exactly did the judge say?

These are the judge’s words ordering DHS:

Defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission 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 need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.

Nothing in this order prohibits the agency from proceeding to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency from granting advance parole in individual cases it finds deserving, or from granting deferred action to new individuals on an ad hoc basis.

The agency shall post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order. The agency shall keep records of its actions on all DACA-related applications and provide summary reports to the Court (and counsel) on the first business day of each quarter.

Why did the court order DACA to be re-opened?

Judge Alsup wrote “the agency’s decision to rescind DACA was based on a flawed legal premise.”  Basically, DHS cancelled DACA one day after Attorney General Jeff Sessions sent a short letter to the then-Acting Secretary of DHS, Elaine Duke, saying the Obama administration had created the DACA program unconstitutionally.  He wrote that DACA was vulnerable to the same kind of challenge as the similar proposed program for the parents of U.S. citizens, called Deferred Action for Parental Accountability, or DAPA, because both programs were based on the executive branch using a power that really belongs to Congress – making new laws.

Judge Alsup’s decision goes into great detail about the history of various presidential administrations using deferred action as a form of prosecutorial discretion.  He writes that Congress and the Supreme Court have recognized deferred action, and not just in the context of DACA.  The 5th Circuit Court of Appeals decision on DAPA is distinguishable.  DAPA would have provided benefits to people based on their U.S. citizen children, a subject already covered by the immigration law as passed by Congress.  But the DACA subject is not already covered by the law.  He writes,

Rescission was based on a flawed legal premise and must be set aside as ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’

Attorneys for the government argued that there is another reason for cancelling DACA, which is the Trump administration was worried about the risk of litigation.  The court slams this reasoning as something the government invented only after the decision had already been made.  In reality, Judge Alsup found, courts should not accept rationalizations made up after the fact.  The DHS acting secretary simply relied on the Attorney General’s decision, and did not balance the risk of litigation against the interests of DACA recipients.

In addition, Judge Alsup used President Trump’s own tweets against the DHS, finding that DACA was not terminated because the administration considered it a bad policy.  To the contrary, Trump famously tweeted that “dreamers should rest easy,” and about his intention to revisit DACA if Congress did not pass a law addressing their immigration situation.

The judge found that individual DACA recipients stand to suffer clear harm if DACA remains terminated.  University of California and other entities also demonstrated standing by showing they will lose students and employees impacting “their organization interests, economic output, public health, and safety.”  The states who joined in the lawsuit against the Trump administration, according to Judge Alsup, do not have enough of a tax interest to allow their standing.

January 10, 2018