A federal judge in Texas is expected to rule within days – to a few weeks – on a case that will determine the fate of DACA and 640,000 immigrants brought to the country as children illegally. While the Biden administration has vowed to secure a pathway for citizenship for these people, many anticipate that DACA will be ruled unlawful, resulting in recipients being stripped of their protection from deportation and work permits. Texas and eight other states are asking the court to end DACA, arguing the program is unconstitutional. The first hearing was in December, but the judge did not issue an immediate ruling.
President Biden, who recently sent an immigration reform bill to Congress, has indicated he is open to dealing with immigration reform piece by piece. For him, the important thing is to make progress on the immigration front, as such. The first sign that such progress could be in the works is the introduction of a new immigration bill dealing with the so-called Dreamers, that is to say, young people who were brought to America as children and grew up in this country. A bipartisan bill authored by Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) entitled The Dream Act of 2021, was just introduced in Congress and would provide these young people the opportunity to apply for lawful permanent resident status and eventually citizenship, if they meet certain requirements.
Requirements to Qualify
Applicants of the proposed bill would have to meet the following requirements to qualify for conditional permanent resident status:
- Through documentation described in the bill, establish that they were brought to the U.S. at age 17 or younger and have lived continuously in the U.S. for at least four years prior to the bill’s enactment;
- Pass a government background check, demonstrate “good moral character” with no felony or multiple misdemeanor convictions, submit biometric and biographic data, and undergo a biometric and medical exam;
- Demonstrate they have been admitted to a college or university, have earned a high school diploma, or are in the process of earning a high school diploma or an equivalent; and
- Pay an application fee.
The bill would automatically grant conditional permanent resident status to DACA recipients who still meet the requirements needed to obtain DACA.
Conditional permanent resident status can be changed to lawful permanent resident (LPRs or green-card holder) status as soon as they meet the following conditions:
- Maintain continuous residence in the U.S.;
- Complete one of the following three requirements:
- Graduate from a college or university, or complete at least two years of a bachelor’s or higher degree program in the U.S. (education track);
- Complete at least two years of honorable military service (military track); or
- Have worked for a period totaling at least three years (worker track);
- Demonstrate an ability to read, write and speak English and an understanding of American history, principles and form of government;
- Pass a government background check, continue to demonstrate “good moral character” without felony or multiple misdemeanor convictions, submit biometric and biographic data, and undergo a biometric and medical exam; and
- Pay an application fee.
Recipients can lose conditional permanent resident status if they commit a serious crime or fail to meet the other requirements set in the bill. These are the very same requirements that the Senators said were in the bills they had proposed in the last few years.
Chances of Passage
There still are those legislators who object to providing any relief to anyone who has ever entered the country illegally, and based on that position alone regardless of the equities involved, will not support this initiative. But nonetheless, the chances of passage of this measure are reasonably good since Dreamers as a whole have won broad-based support in both parties in Congress, as well as general acceptance in the population as a whole. The challenge will be to steer the legislation through the legislative traffic jam that is likely to form as Congress takes up a wide range of other pressing issues before it, such as the pandemic, the economy, cybersecurity breaches, and international hot spots boiling over.
On November 14, 2020, Judge Nicholas George Garaufis of the U.S. District Court for the Eastern District of New York issued an opinion regarding the July 28, 2020 memorandum signed by Acting Secretary Chad F. Wolf. On December 4, 2020, Judge Garaufis required the Department of Homeland Security (DHS) to take certain actions to implement his November 14 opinion. As a result, effective December 7, 2020, U.S. Citizenship and Immigration Services (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.
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 Wolf Memorandum.
DHS will comply with Judge Garaufis’ order while it remains in effect, but DHS may seek relief from the order.
 Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Wolf Memorandum).
 Batalla Vidal, et al. v. Wolf, et al., 16-CV-4756 (NGG) (VMS), 2020 WL 6695076 (E.D.N.Y. Nov. 14, 2020); State of New York, et al. v. Trump, et al., 17-CV-5228 (NGG) (VMS), 2020 WL 6695076 (E.D.N.Y. Nov. 14, 2020).
On August 17, 2018, the U.S. District Court for the District of Columbia issued an order in NAACP v. Trump that partially stays its original order as to new DACA applications and applications for advance parole, but not as to renewal applications.
This order means that there are no new changes to the DACA program at this time. It is still being implemented on the terms of the prior court rulings discussed below. USCIS will not consider first-time, initial applications or applications for advance parole based on a grant of DACA. It will, however, continue to accept and process renewal DACA applications, as well as initial DACA applications filed by individuals who have previously had DACA.
Previously, the district court held that the government’s decision to rescind DACA was unlawful and vacated the termination of the DACA program, requiring the government to accept and process both new and renewal DACA applications, as well as applications for advance parole. The August 17, 2018 order does not change the court’s conclusion, but does continue the hold it had placed on its own order, which continued to bar processing advance parole applications and first-time, initial applications, at least temporarily. The Court stated that it “is mindful that continuing the stay in this case will temporarily deprive certain DACA-eligible individuals, and plaintiffs in these cases, of relief to which the Court has concluded they are legally entitled,” however that it was “aware of the significant confusion and uncertainty that currently surrounds the status of the DACA program.” Additionally, in their August 15, 2018 filing, the plaintiffs had not opposed keeping the stay in place for new applicants. Citing both the potential for additional confusion and the plaintiff’s position, the Court agreed to preserve the status quo for the time being. Additionally, there was a preliminary injunction hearing on August 8, 2018 before U.S. District Court Judge Hanen in in a Texas district court. That case, Texas v. Nielsen, is a lawsuit brought by seven states, led by Texas, challenging the legality of the DACA program and requesting a nationwide injunction to block any DACA grants or renewals going forward. A decision on that hearing is still outstanding.
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August 3, 2018
A federal judge ruled that the Trump administration must fully restore the DACA program but delayed the order until August 23, 2018, to allow the government to respond and appeal. In the decision, the court stated, “The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.” The court also denied the government’s motion to reconsider, stating that “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” Additionally, the court states that it does not hold that DHS lacks the statutory or constitutional authority to rescind the DACA program, but rather that “if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision.” (NAACP v. Trump, 8/3/18)
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