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Written By: Grey Robinson
Member, American Journal of Trial Advocacy
On June 18, 2020, the Supreme Court issued its ruling on Department of Homeland Security v. Regents of University of California, a case concerning the potential termination of the Deferred Action for Childhood Arrivals (“DACA”) program.[i] The Court in a 5-4 opinion, ultimately rejected the termination of the DACA program on administrative grounds.[ii]
DACA is an immigration policy enacted in 2012 that allows undocumented qualifying youth and individuals who were minors at the time of their arrival to defer deportation from the United States.[iii] In addition to providing a temporary status for such immigrants, DACA also provides employment and schooling documentation.[iv] The Regents casearose out of a 2017 policy decision by President Donald Trump to phase out the DACA program as an method of temporary immigration status.[v] This policy, announced by Jeff Sessions, then acting Attorney General, on September 5, 2017, began the slow phasing out of DACA processing by United States Citizen and Immigration Services (USCIS), with all DACA applications set to expire around late 2020.[vi]
This announcement put a temporary end to any new application attempts by previously qualified individuals, but allowed DACA recipients with existing permits that were set to expire before March 5, 2018, the opportunity to apply for what was at the time a two-year renewal option.[vii] Under the Department of Homeland Security’s recommendation to USCIS, DACA recipients were not to be treated as “enforcement priorities”[viii] within their renewal proceedings prior to March 5, 2018.[ix]
Coinciding with this Department of Justice announcement, the Ninth Circuit in reviewing the Regents case, enjoined USCIS from fully rescinding DACA until the case could be heard on the merits at the Supreme Court, thus effectively issuing relief and placing on hold all further DACA applications.[x] This injunction however, did not effect individuals who might have qualified for DACA but had not applied before.
Ultimately, the Supreme Court held that DHS’s attempt at rescinding DACA was “arbitrary and capricious” in violation of the Administrative Procedure Act (“APA”).[xi] The Court itself need not rule on DACA as a matter of public policy, but rather addressed the procedural requirements for rescinding such immigration policies, making note that DHS needed to have a reasonable explanation for the termination.[xii] Barring more reasoned rationale for the rescinding of the status, the order to terminate DACA was rejected by the Supreme Court.[xiii] Under the Regents DACA guidelines, consideration by immigration officers was thus returned to its 2012 status, both in Department of Homeland Security (DHS) recommendations and USCIS procedure and guidelines.
In light of Regents, DHS drafted and sent to USCIS new guidelines for the continued evaluation and processing of DACA applications on July 28, 2020.[xiv] This memorandum by DHS—referred to as the “Wolf Memo,” named after then acting Secretary of Homeland Security, Chad Wolf—made major changes to USCIS DACA application review. USCIS then crafted its own memorandum interpreting the guidelines, referred to here as the “USCIS memo”.[xv]
The most relevant change for immigration practitioners would be the shortening in authorization period for DACA filers. Under the current DHS guidelines, DACA renewal is needed every year, in contrast to the two year authorization period previously in place.[xvi] This does not affect individuals who were renewed before Regents,but anyone who renews after July 28, 2020 will only have their renewal in effect for one year before expiration. Fees associated with the employment authorization and biometric fees, both of which are necessary in DACA filings, are still in effect for each time, which nearly doubles the cost of DACA filings for applicants.[xvii] The USCIS memo makes note that these fees may change in coming years, however, as of right now, DACA recipients are exempt from filing fee increases in Form I-765 applications. Form I-765 is the employment form necessary for DACA filings, which went into effect in October of 2020.[xviii] Therefore, while filing fees are now applied on an annual basis rather than a two-year period, there is not an overall increase in fees at this time.
Another major change in guidelines from the USCIS is the instruction to immigration officers to reject all first time DACA applicants without prejudice.[xix] This guideline’s instruction also applies to first time applicants who had applied for the first time, at any point, between the 2017 decision to rescind by the Department of Justice and today. USCIS makes note that denied applicants are to have their associated filing fees refunded and such rejection should occur without prejudice, so the application could be refiled “should DHS determine to begin accepting initial requests again,” despite this, such policy greatly limits the scope of DACA’s usefulness to current immigrants.[xx]
This decision to reject initial applications is construed narrowly however, per USCIS practice. In terms of definitions, prior to the 2017 decision to rescind DACA, DACA recipients whose status had lapsed and who then sought new consideration to receive DACA were treated as new or “initial” DACA recipients, despite the fact that they had received DACA at a prior time.[xxi] This same “initial” or “new” treatment was also extended to individuals whose DACA applications had been terminated by USCIS. USCIS, however, in their memorandum and guidelines states that these individuals currently will not be treated as “initial” or new DACA applicants with respect to the immediate rejection policy.[xxii] This is in part because of a shift within USCIS during 2018 to adhere to the Ninth Circuit’s injunction. Therefore, any individual who has previously received DACA status, whether lapsed or not, can potentially be considered by USCIS without the immediate rejection policy taking effect.
Another change for practitioners is the time frame in which renewal applications should be processed and considered. Since 2014, USCIS has recommended renewal requests to be filed 150 to 120 days before expiration.[xxiii] However, prior to the 2020 guidelines USCIS has reviewed and issued renewal requests filed earlier than 150 days.[xxiv] Now, any renewal application filed more than 150 days before a recipients DACA status expires will be placed on hold by USCIS.[xxv] The USCIS memorandum makes note however, that immigration officers are still permitted to use discretion in considering and granting filings issued more than 150 days before expiration, so long as there is a legitimate reason for doing so.[xxvi]
Not only does this “Wolf Memo” issue new processing procedures, but it also outlines DHS intentions to assess the maintenance, modification, and potential termination of the DACA policy. In this way, processing guidelines by USCIS are designed to be a temporary guideline while such considerations are made.
The Supreme Court holding, while not allowing for the phasing out of DACA, did not directly address the evaluation standards by either DHS or by USCIS—leaving the current guidelines in place for current or prospective DACA recipients. However, the likelihood of the current standards remaining in place is unlikely given both current legislation in Congress and an upcoming change in executive power taking place tomorrow. Both the Wolf Memo and the USCIS memo make note as well that policies and filing procedures are under great review at the current moment.[xxvii] On the legislation end, in June 2019, the House of Representatives passed the Dream and Promise Act, the most recent iteration of a pathway to citizenship for DACA receipts as well as Temporary Protective Status and Deferred Enforced Departure status holders.[xxviii] Such legislation, if passed ,would allow current DACA recipients to have temporary legal permanent resident status (LPR), potentially phasing out the need for USCIS guidelines specific to DACA recipients. Such legislation would likely prompt procedural changes by USCIS with regards to new or “initial” DACA applicant review, especially as current DACA recipients are granted temporary LPR status. Finally, President-Elect Joe Biden has made public comments in support of both the DACA status and current congressional legislation.[xxix] Therefore it is a reasonable conclusion, that under the Biden administration, USCIS guidelines will return to a version of the 2012-2016 parameters given that President-Elect Joe Biden was serving as Vice President during this period. Despite this, as of right now, DACA applicants face the strictest evaluation process seen since the program’s inception — with little assurances of approval. Without legislation such as the Dream and Promise Act being passed in the Senate, DACA applicants are subject to both the whims of executive policies and USCIS discretion in their application process, neither option ideal for the over 800,000 benefiting from the status.
[i] 140 S. Ct. 1891 (2020).
[ii] Id. at 1916.
[iii] U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals (DACA) (Dec. 7, 2020), https://www.uscis.gov/archive/consideration-of-deferred-action-for-childhood-arrivals-daca.
[v] Adam Edelman, Trump Ends DACA Program, No New Applications Accepted, NBC News (September 5, 2017, 4:57 PM), https://www.nbcnews.com/politics/immigration/trump-dreamers-daca-immigration-announcement-n798686.
[viii] Refers to concentrating Department of Homeland Security resources on issues such as “national security, public safety, and boarder security” and issuing higher standards of review. See, Department of Homeland Security, DHS Immigration Enforcement Priorities (June 5, 2019), https://www.dhs.gov/immigration-statistics/enforcement-priorities.
[ix] Adam Edelman, Trump Ends DACA Program, No New Applications Accepted, NBC News (September 5, 2017, 4:57 PM), https://www.nbcnews.com/politics/immigration/trump-dreamers-daca-immigration-announcement-n798686.
[x] Regents of the U. of California v. U.S. Dept. of Homeland Sec., 908 F.3d 476 (9th Cir. 2018), cert. granted sub nom. Dept. of Homeland Sec. v. Regents of the U. of California, 139 S. Ct. 2779 (2019), and rev’d in part, vacated in part sub nom. Dept. of Homeland Sec. v. Regents of the U. of California, 140 S. Ct. 1891 (2020).
[xi] Regents, 140 S. Ct. at 1912.
[xii] Id. 1916.
[xiv] U.S. Department of Homeland Security, Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (July 28, 2020), https://www.dhs.gov/sites/default/_les/publications/20_0728_s1_daca-reconsideration-memo.pdf.
[xv] U.S. Citizenship and Immigration Services, Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2012 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children’” (August 21, 2020), https://www.uscis.gov/sites/default/files/document/policy-alerts/dacamemo.pdf.
[xxi] National Immigration Law Center, DACA Supreme Court Case Summary and Practice Update (September 1, 2020), https://www.nilc.org/issues/daca/daca-supreme-court-case-summary-and-practice-update/.
[xxii] U.S. Citizenship and Immigration Services, Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2012 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children‘” (August 21, 2020), https://www.uscis.gov/sites/default/_les/document/policy-alerts/DACA%20implementation%20memo%20v2%208.21.20%20_nal.pdf.
[xxvii] See, U.S. Citizenship and Immigration Services, Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2012 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children“‘ (August 21, 2020), https://www.uscis.gov/sites/default/_les/document/policy-alerts/DACA%20implementation%20memo%20v2%208.21.20%20_nal.pdf; U.S. Department of Homeland Security, Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” (July 28, 2020)https://www.dhs.gov/sites/default/_les/publications/20_0728_s1_daca-reconsideration-memo.pdf.
[xxviii] Dream and Promise Act of 2019, H.R. 6, 116th Cong. (2019).