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While Congress stays silent, Federal Judges act to Keep DACA Alive

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Federal Judge John Bates of the Federal District Court for the District of Columbia has spoken to protect Dreamers from deportation, where Congress has remained silent. In a Tuesday ruling, Judge Bates called the Department of Homeland Security’s decision to rescind the DACA program “arbitrary and capricious,” and with no sufficient basis to justify rescission of the program, ordered DHS to accept and process new as well as renewal DACA applications.

As part of his opinion Judge Bates vacated the Trump administration’s decision to rescind DACA, for a period of 90 days, giving the Department of Homeland Security an opportunity to explain its decision to rescind the DACA program. If the government fails to adequately explain the grounds for finding the DACA program to be unlawful, DHS must accept and process new and renewal DACA applications. DHS has responded to the ruling in a statement where it vowed to “continue to vigorously defend” its decision to rescind the DACA program and looks “forward to vindicating its position in further litigation.”

This ruling is the third in recent months against the Trump administration’s decision to rescind the DACA program.  Earlier this year, Federal Judges in Brooklyn and San Francisco issued similar rulings to keep the DACA program in place, however the Bates ruling is the first ordering the government to accept new DACA applications.

As it currently stands, USCIS is accepting requests to renew a grant of deferred action under DACA, but is not accepting new requests for DACA from individuals who have never before sought DACA benefits. That may all change however if DHS does not defend its actions to rescind the program within 90 days. Approximately 800,000 young undocumented immigrants have received DACA benefits, which include the ability to remain lawfully present in the United States without fear of deportation, and the ability to obtain lawful work in the United States. When the President rescinded the DACA program in March, he gave Congress the opportunity to pass legislation to shield Dreamers from deportation by March 5th, however Congress failed to do so. To make matters worse, in February, the Supreme Court of the United States declined a White House request asking the Court to rule once and for all whether the Trump administration could rescind the program.

The Department of Homeland Security has provided guidance on its website confirming that due to federal court orders, they will continue to accept renewal requests for DACA:

“In compliance with court injunctions, USCIS is accepting and adjudicating DACA requests for renewals as they are submitted.  This process is in accordance with the longstanding DACA policies on renewals.  USCIS is working expeditiously to review and process these requests consistent with previous DACA renewal timelines.  USCIS is not accepting requests from individuals who have not previously been granted deferred action under DACA. In accordance with long-established policy, a DACA request that is granted is generally valid for two years from the date of issuance.”

In addition, DHS has responded that DACA recipients are not a priority or target group for deportation from the United States, absent additional negative factors such as an order of removal, or criminal background including violent and non-violent crimes such as DUIs, or a concern that the individual poses a national security or public safety concern, while the individual is under DACA protection or has a DACA renewal request pending with USCIS.

“With regard to enforcement actions against current and expiring DACA recipients, DHS has repeatedly stated that, absent additional negative factors, DACA recipients are not a priority or target group for arrest or removal. With the general exception of certain classes of aliens – including those who otherwise pose a threat to national security or public safety – an individual who is a current DACA recipient, or who was a previous DACA recipient but has filed for renewal, will not be targeted for arrest nor will be removed from the United States while the individual has DACA protections or while the DACA renewal request is pending.

For more information on the state of DACA please visit our website.