The Trump administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) initiative set off a slew of lawsuits attempting to stop the Department of Homeland Security (DHS) from terminating the initiative. Much of that litigation has been successful—as a result, DHS is still accepting DACA renewal applications. However, a new lawsuit led by Texas has the potential to upend everything.
When President Trump announced the end of DACA in September 2017, the administration said it would phase out the program. Anyone whose DACA was due to expire before March 5 would be given a one-month opportunity to submit a renewal, but after that individuals would begin to lose their status. As result, multiple lawsuits were filed that offered various arguments for why the administration could not end DACA in such a manner.
The first of these lawsuits was decided in January 2018, when a federal district court in San Francisco found that the administration’s termination of DACA was “based on a flawed legal premise.” The court in this case ordered DHS to once again begin accepting renewal applications, but did not require the agency to accept new applications for individuals who never had DACA.
The administration has aggressively attempted to appeal the San Francisco decision by bypassing the Ninth Circuit Court of Appeals and asking the Supreme Court to take the case immediately. This attempt was rejected by the Supreme Court in February 2018, forcing the administration to go through the normal appeals process. The Ninth Circuit heard oral arguments in that appeal earlier this week, where there was a great deal of discussion of President Trump’s public statements on DACA.
Two more federal courts in District of Columbia and New York have also blocked the administration’s attempt to end DACA. The decision in the DC District Court dealt President Trump the largest blow, giving the administration 90 days to come up with a better rationale for ending DACA.
If the administration is unable to provide such a rationale by late July, the entire DACA initiative will be restored. DHS would then be required to accept both renewal and new applications.
In early May, Texas and six other states threw an additional wrinkle into the mix of cases by suing the Trump administration, attempting to halt DACA immediately rather than phasing it out. The small group of states in this case have a very sympathetic judge in Judge Hanen, who blocked the Obama administration from implementing expanded DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2014.
If Judge Hanen were to side with Texas and rule that the federal government should end DACA immediately, there would be conflicting federal district decisions. This could result in any one of a number of scenarios playing out in the courts.
The bottom line is individuals who have DACA can currently apply for a renewal and the application will be processed by DHS. With multiple cases working their way through the courts, there is uncertainty as to how, when, and if the Supreme Court will take up the case for review. It will be important to keep a close watch on all developments.
Photo by Sean Kong