DACA to Be Temporarily Continued, Orders Federal Judge

Federal court finds Trump executive order terminating DACA likely violated federal regulatory requirements, and thus must be set aside pending final court decisions.

The September, 2017 Executive Order by Donald Trump halting the Deferred Action for Childhood Arrivals (DACA) program was the subject of a recent federal court case, Regents of the University of California v. DHS. At issue was whether the U.S. government had followed the necessary procedural requirements under federal law when it abruptly terminated the DACA program.

The court found that the government had not done so. It said that, in addition, "plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious," the basis of their request to set the order aside under the federal Administrative Procedures Act.

On this basis, the court issued a temporary injunction directing the Department of Homeland Security (DHS) to keep the DACA program going on a nationwide scale, on the same terms and conditions as were in effect before its September 5, 2017 rescission.

In other words, U.S. Citizenship and Immigration Services (USCIS) must allow people who already had DACA to renew their enrollments, and allow some people who previously held DACA to submit new applications. The court allowed for certain exceptions to the cancellation of Trump's executive order, however, as follows:

  • No new applications need to be accepted, unless USCIS wants to.
  • No Advance Parole applications need to be processed, unless USCIS wants to.
  • Government discretion is still in place with regard to application review: USCIS can continue to make individual, case-by-case decisions on each renewal application, and DHS can take enforcement action against anyone, including those with DACA, who it determines poses a potential risk to national security or public safety or who “deserves" to be removed from the United States.

In response to the court's injunction, USCIS issued a statement containing basic instructions on applying for DACA renewal, basically on the same terms as before. You are allowed to apply even if your DACA expired on or after September 5, 2016.

If your DACA expired before September 5, 2016, or your DACA was previously terminated at any time, you are not out of luck. You can file a new initial DACA request.

USCIS also confirmed that it will not accept DACA applications from people who have never before been approved for it, nor will it accept Advance Parole requests from people with DACA.

This window of opportunity might not last forever. The Trump Administration has been fighting it, though its attempt to appeal the judge's ruling to the U.S. Supreme Court went nowhere, when the Court refused to pick up the case, on February 26, 2018.

The ultimate outcome depends on what the federal courts do on the merits of this case (a temporary injunction just buys time before the final court ruling) and on whether Congress acts to replace DACA with actual legislation (which it has been negotiating over, but so far without results).

Effective Date: January 9, 2018