On January 9, 2018, a federal district court judge issued a nationwide injunction directing Department of Homeland Security (DHS) to resume accepting renewal applications from Deferred Action for Childhood Arrivals (DACA) beneficiaries. The Trump administration attempted to bypass appellate review and requested that the U.S. Supreme Court intervene to review the lower courts’ injunction directly. On February 26, 2018, the Supreme Court rejected this request and DHS will continue to accept DACA renewal applications beyond the March 5 deadline the administration had previously imposed. This order does not apply to new applicants who have never applied for DACA and all DACA-related Advance Parole applications.
On September 5, 2017, the Trump Administration announced plans to terminate the DACA program, effective March 5, 2018. United States Citizenship and Immigration Services (USCIS) would reject any initial DACA requests received after September 5, 2017 and would only process renewal DACA applications received on or before October 5, 2017 for DACA recipients whose benefits would expire between September 5, 2017 and March 5, 2018.
On January 9, 2018, a federal district court judge in the Northern District of California issued a nationwide injunction directing DHS to partially resume the DACA program. As part of the order, the DHS is required to “maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017″ except with regards to applicants who have never applied for DACA and for all DACA-based Advance Parole applications. In February, a federal district judge in the Eastern District of New York issued a similar injunction in a challenge to DACA termination.
The Trump Administration requested that the Supreme Court lift the injunctions against terminating DACA before the lower courts have issued a judgement on the merits of the case. The Supreme Court declined to lift the injunctions and the matter will proceed through normal channels and initially be heard by the Ninth Circuit Court of Appeals.
If the Ninth Circuit upholds the lower court decision and if Congress fails to implement legislation related to class of foreign nationals protected by DACA, only then will the Supreme Court decide to review the matter. In the meantime, the DHS must continue accepting renewal DACA applications. We recommend continuing to file DACA-based EAD extension applications until the injunction is overturned or until Congress passes DACA legislation.
For current DACA recipients, we recommend that they avoid international travel even with valid Advance Parole document. While the DHS has indicated they will honor the validity period for previously approved Advance Parole documents, Customs and Border Protection (CBP) has indicated Advance Parole does not guarantee admission into the US. Also, DHS has authority to revoke or terminate a grant of Advance Parole at any time.
PwC continues to monitor this matter and will be sure to update you as changes occur.
For further details regarding DACA or any other immigration matters, please contact a member of our team at PwC Law LLP.