DACA lives! Maybe? Yesterday, U.S. District Judge John Bates ruled that the Department of Justice’s termination of the DACA program rested on a lack of legal reasoning and was unlawful. Judge Bates was the third federal judge to rule that the administration’s termination of DACA was unlawful. However, Judge Bates went even further than the other courts and Judge ordered not only that the DACA program must stay in place, but that the government must accept NEW applications. The other judges to consider the termination of DACA have only ordered the government to accept renewals of DACA classification. Judge Bates is ordering the government to accept and decide new DACA applications. In addition, the judge ordered the government to accept applications for advance parole by DACA holders.
This does not, however, mean that individuals who now qualify for DACA for the first time can rush out and apply for DACA today. The Judge stayed his decision for 90 days to give the government a chance to offer some sort of reasonable justification for its decision to rescind DACA. If the government can not present a cogent reason after that 90 day period, DACA should go back into effect and the government must accept new DACA applications and applications for advance parole from qualified DACA holders.
Applications for extensions of DACA may still be filed regardless of the 90 day stay. The right to extend DACA has been recognized by two other courts and appellate courts including the Supreme Court have refused to put a hold on the acceptance of DACA renewals.
A little history about DACA termination. Although the President stated that he would treat DACA holder “with great heart,” the administration was always planning on terminating DACA. However, they were aware that DACA is extraordinarily popular so they wanted to make it seem like their hand was forced. Enter the Attorney General of Texas who threatens to sue the administration over the existence of DACA. He got a bunch of other Attorneys General to go along with him. The Attorneys General even gave the administration a deadline. With the deadline looming, U.S. Attorney General Jefferson Beauregard Sessions III happily capitulated to the Attorneys General threats. Stating that he could not legally defend DACA, he announced he was terminating the program.
Well, Judge Bates called “bull” on that yesterday. He said that there was no legal justification for the rescission of DACA. He stated, “DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful. Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.” However, the Judge chose to tread lightly and give the government 90 days during which it “may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” If the government fails to do so, the court ordered the DHS to accept DACA applications, including new applications and applications for advance parole.
While government lawyers spend the next 90 days coming up with some cockamamie theory as to why DACA is illegal, individuals who may be affected by this decision should be gathering documents to apply for DACA. DACA is available to an immigrant who:
- Entered before January 1, 2010
- Entered before the age of 16
- Is currently in school, have graduated from high school, have obtained a GED or are an honorably discharged veteran of the Armed Forces or Coast Guard
- Has not been convicted of a felony offense, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety
- Is at least 15 years old
We will continue to keep you updated on the status of this case. 90 days from yesterday is July 23, 2018. Get ready.