BREAKING: Judge Orders Restoration of DACA Program as well as New Applications

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new federal court order that reinstates the DACA program (Deferred Action for Childhood Arrivals) and invalidates the Wolf Memorandum which previously posed an obstacle to initial requests for DACA.

Want to know more? Keep on watching for more information.

Overview

On December 4, 2020, U.S. District Judge Nicholas G. Garaufis of the Eastern District of New York made history when he signed a court ruling that will force the government to accept new initial requests for DACA within 3 calendar days.

This legal challenge was brought before the court after the government’s publication of the controversial “Wolf Memorandum” on July 28, 2020, in which the acting Secretary of Homeland Chad Wolf unlawfully 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.

DACA applicants who had an application for deferred action through DACA pending between June 30, 2020 and July 28, 2020 (the date the Wolf Memorandum was issued) brought sought alleging that the Wolf Memorandum was a violation of the Administrative Procedure Act.

The court agreed finding that the Wolf Memorandum was unlawful because it violated provisions of the Administrative Procedure Act, and also because Mr. Wolf did not have the lawful authority to serve as Acting Secretary of DHS when the changes were made.

As a result, the court vacated the Wolf Memorandum and ordered the DACA program reinstated with terms as they existed prior to the attempted rescission of the program on September 2017.

What does the ruling mean?

In accordance with his decision, Judge Garaufis has ordered DHS to:

  • Post a public notice, within 3 calendar days of [the Court 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.

When will USCIS start accepting initial requests and advance parole requests for DACA?

The government must immediately start accepting initial requests for DACA and advance parole requests. By today, Monday December 6, 2020, the United States Citizenship and Immigration Services (USCIS) and DHS must post a public notice that it will be accepting such requests.

Will the government comply with the court order?

Yes. In his ruling, Judge Garaufis made clear that the government has assured the court that a public notice will be forthcoming on its website.

Is there any relief for DACA recipients who received EADs issued for 1 year instead of 2?

Yes. Pursuant to the ruling, deferred action and employment authorization documents (“EADs”) granted for only one year must be extended to two years effective immediately.

Where can I find more information?

Please check out our helpful links below and be sure to look out for updates on the USCIS DACA webpage here.

Questions? If you have immigration questions and would like to schedule a consultation, please call 619-819-9204 or text 619-483-4549.

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