After the Department of Homeland Security (DHS) defied the June 2020 Supreme Court decision vacating the administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program, on December 4, 2020, a federal court explicitly ordered DHS to begin accepting new DACA applications.
Effective December 7, 2020, DHS must:
- Accept initial applications from those who haven’t been able to apply since the administration announced the DACA rescission on September 5, 2017;
- Automatically extend to two years any DACA renewals and work permits issued since July 28, 2020 for only one year;
- Accept applications for advance parole which allows travel abroad for any DACA recipients who need to travel.
Following the administration’s DACA rescission announcement on September 5, 2017, DHS stopped accepting new applications. Since then, eligible youth who turned 15 (a requirement to be able to apply) have been unable to request DACA status. Those with DACA also could no longer apply for permission to travel abroad even for work or family necessity.
The Supreme Court’s June order should have resulted in the administration immediately restoring DACA as it existed before its rescission. Instead, in a July 28, 2020 memorandum, Acting DHS Secretary Chad Wolf defied the order, ostensibly while the agency “reviewed” the program. The memo instructed that DHS would not resume accepting initial DACA applications from newly eligible youth, and also that the duration of DACA status and work permits for those who already had DACA would be reduced from one year to two, .
On November 14, 2020, a federal court struck down that memorandum, finding that Acting DHS Secretary Wolf was not legally in his position when he issued it, and that it was also arbitrary and capricious. In a December 4, 2020 ruling, the court also ordered DHS to begin accepting new DACA applications by December 7, 2020, to extend to two years any DACA status and work permits issued for only one year following the Wolf memorandum, and to allow DACA recipients to be able to resume applying for permission to travel abroad if needed.
While on December 7, 2020, DHS issued a notice complying with the federal court’s order, it also noted that it is considering filing an appeal.
The court’s order is welcome to those who have been shut out of DACA for more than three years, but the only real solution for them is a path to permanent status. That reality is underscored by the fact that Texas and several other states have challenged the legality of the DACA program as originally instituted, and a federal court hearing will be held in that case on December 22, 2020.
The American Dream and Promise Act, which would provide DACA holders with a path towards permanent residency, was approved by the House of Representatives in 2019. The next Congress should reintroduce and pass it. Those with DACA, those who couldn’t apply while DACA was rescinded, and the nation, will benefit.