On June 18, 2020, when the Supreme Court ruled that the Trump Administration had not properly terminated the Delayed Action for Childhood Arrivals (DACA) program, many (including Dreamers themselves) assumed that at least for the time being, DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Consistent with this expectation and in accordance with the Supreme Court ruling, on July 17, 2020, Judge Paul W. Grimm of the United States District Court for the District of Maryland ordered that DACA be returned to its pre-September 5, 2017 state; i.e., to the process that was in place prior to the Trump Administration’s attempted termination of the program.
However, the Administration has chosen to see the decisions differently. On July 28, 2020, Acting Secretary of Homeland Security Chad Wolf issued a memorandum in which he changes the DACA application rules rather than restoring the program to the status quo ante. Under his implementing guidance USCIS would:
- Reject all initial DACA requests from individuals who had never previously applied;
- Accept DACA requests and requests for advance parole and employment authorization from individuals who were previously granted DACA status;
- Grant those requests for no more than one year at a time (instead of the usual two years);
- Base the grant of advance parole on urgent humanitarian reasons or for reasons of significant public benefit; and
- Caution DACA holders that travel on or after August 15, 2020 without first receiving advance parole would automatically terminate DACA status.
In August, a group of undocumented immigrants amended a suit filed in the U.S. District Court for the Eastern District of New York alleging that the changes promulgated by Acting Secretary Wolf violated the Administrative Procedures Act and were illegal because Wolf had not been validly appointed to his post.
At about the same time, a nonprofit coalition asked Judge Grimm to hold the government in contempt for the changes it made to DACA in violation of the Supreme Court ruling and his own order. Plaintiffs argued that despite the Administration’s “’acknowledged obligation to return the DACA program to the status quo ante, defendants opted instead for a strategy of obfuscation and defiance . . .’” Plaintiffs are asking Judge Grimm to force the Administration to comply with his earlier order.
Jackson Lewis will provide updates as they become available.