Breaking News: DACA VICTORY - Federal Judge Orders DHS to Accept Initial First time DACA Applications within 3 Calendar Days — Visa Lawyer Blog

We are very happy to bring you this late breaking news.

Today December 04, 2020, a federal judge from the United States District Court for the Eastern District of New York, issued a ruling that requires the Trump administration to post a public notice within 3 calendar days that it will accept new initial requests for DACA (Deferred Action for Childhood Arrivals) applications effective immediately.

Batalla Vidal et al., v. Wolf et al. Court Order

Overview of DACA Litigation

This order builds on the judge’s previous ruling which declared the actions of Department of Homeland Security Secretary Chad Wolf unlawful, given the court’s finding that Wolf was not lawfully serving as acting DHS secretary when he signed rules limiting applications and renewals for the Deferred Action for Childhood Arrivals (DACA) program.

As you may recall back in 2017 the Trump administration engaged in aggressive tactics to eliminate the DACA program, however the U.S. Supreme Court successfully blocked such attempts, ultimately allowing DACA renewals to continue to be accepted.

In its opinion, the Supreme Court stated that the government did not follow the law – namely the Administrative Procedure Act – when it sought to eliminate DACA. Thus, the court found that because the government did not go through the appropriate process to dismantle DACA it would remain in place. Interestingly, the Supreme Court made clear that while the government did not go through the appropriate process to eliminate DACA, that it had the power to do so provided the government followed the appropriate procedures. The justices also stopped short of requiring the government to accept initial requests for DACA.

The following year on July 28, 2020, the Trump administration continued to stand its ground in blocking acceptance of initial DACA applications with the release of a scathing memorandum authored by Wolf. In it Wolf directed DHS personnel to (1) reject all pending and future initial requests for DACA (2) reject all pending and future applications for advance parole absent exceptional circumstances, and (3) to shorten DACA renewals to a two-year period.

The Ruling

Today, the court made clear that since Wolf was without lawful authority to serve as Acting Secretary of DHS, the Wolf Memorandum ordering DHS to reject all initial requests for DACA is vacated immediately (cancelled).

What is the effect of this cancellation?

In light of the vacatur, the DACA program returns to its terms as they existed prior to the attempted rescission of the program on September 2017 meaning that USCIS must now accept initial requests for DACA.

What is the relief granted by the court to DACA applicants?

In addition to vacating the Wolf memorandum, the court ordered the following relief:

DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020.
The notice must also make clear that deferred action and employment authorization documents (“EADs”) granted for only one year are extended to two years, in line with the pre- Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs and post it to the docket within 3 calendar days of this Order.

Relief for Plaintiffs (Parties to the lawsuit)

The parties are DIRECTED to continue discussions with regard to notices that will be mailed to individual class members (plaintiffs to the lawsuit) and to apprise the court of their joint or separate recommendations by Wednesday, December 9, 2020 at 5:00 pm.
The parties are DIRECTED to contact the court’s deputy to schedule a status conference on Thursday, December 10 or Friday, December 11, to discuss plans to provide individual notice.
The Government is DIRECTED to prepare to provide mailed notice to all class members by December 31, 2020. The Government is DIRECTED to produce a status report on the DACA program to the court by January 4, 2021, which shall include:

the number of first-time DACA applications received, adjudicated, approved, denied, and rejected from November 14 until December 31, 2020;
the number of renewal requests received, adjudicated, approved, denied, and rejected over that time period, and
the number of advance parole requests received, adjudicated, approved, denied, and rejected over that time period.
the number of first-time applications for consideration of deferred action under DACA received and rejected pursuant to the Wolf Memorandum;
the number of DACA renewal applications and applications for EADs that were granted for a period of only one year pursuant to the Wolf Memorandum; and
the number of advance parole requests received, approved, denied, and rejected pursuant to the Wolf Memorandum.

Will USCIS comply with the court order?

Yes. In its ruling, the judge stated that “the government has assured the court that a public notice along the lines describes [see above] will be forthcoming.”

What’s next?

As stated above, within 3 calendar days, USCIS must issue a notice on its website stating that it will accept first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020.

In addition, deferred action and employment authorization documents (“EADs”) granted for only one year must be extended to two years.

Be sure to look out for updates on the USCIS DACA webpage here.

Ready to file? Contact our office to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

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