On December 4, 2020, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York ordered the Department of Homeland Security (DHS) to implement the Deferred Action for Childhood Arrivals (DACA) program as it existed prior to September 2017, including by accepting both new DACA applications and DACA-related advance parole applications. The judge also ordered DHS to post a website notice within three days alerting the public that the agency is now implementing the full DACA program. The cases are Batalla Vidal v. Wolf and State of New York v. Trump.
The judge has now directed the parties to do the following in order to implement his November 14 ruling:
- DHS must post a public notice within three calendar days to be displayed prominently on its website and the websites of all relevant agencies notifying the public that:
- The agency is accepting first-time requests for DACA, renewal requests, and advance parole requests based on the terms of the DACA program prior to September 5, 2017; and
- DACA applications and EADs granted for only one year (under the DHS Wolf memo) are extended to two years.
- The parties to the lawsuit are to continue to discuss notices to be mailed to individual members of the nationwide class that was certified in the court’s November 14 order. DHS is directed to prepare to provide mailed notice to all class members by December 31, 2020.
- By January 4, 2020, DHS is to provide the court with a status report on the DACA program which must include:
- The number of first-time DACA applicants, renewal requests and advance parole requests the agency received, adjudicated, approved, denied, and rejected from November 14 until December 31, 2020; and
- The number of first-time applications for DACA received and rejected pursuant to the Wolf memorandum issued on July 28, 2020; the number of DACA renewals and EAD applications that were granted for only one year under that memo; and the number of advance parole requests that were received, approved, denied, and rejected under the memo.
The order states that DHS has assured the court that it will comply with the notice requirements above.
What does this mean for DACA Beneficiaries?
This most recent court order is a significant step towards the DACA program being fully restored, at least temporarily. Foreign nationals who wish to apply for initial DACA benefits and advance parole should watch for the required upcoming public notices on the DHS website. The notices should provide instruction and guidance on applying for the previously unavailable DACA benefits.
In addition, foreign nationals who are or would be eligible for DACA based on the terms of the program that existed in 2012 may receive written notice of their inclusion in the certified nationwide class and potential eligibility to apply for DACA benefits.
Can the order be appealed?
There still remains a possibility that DHS could try to administratively terminate DACA before the Biden Administration is installed on January 20, 2021, or appeal today’s ruling. There is also still an ongoing legal challenge to the DACA program in a Texas federal district court. However, the Biden Administration has made clear that protection of the DACA program is an utmost priority in its initial days in office.