Last night, a U.S. District Court in California v DHS issued a nationwide injunction stopping the Trump administration from ending DACA as it relates to renewals. The court ordered DHS “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, including allowing DACA enrollees to renew their enrollments.” The administration has vowed to appeal and will likely seek to place this ruling on hold in the appellate court. However, until that happens, DHS must accept certain DACA renewals as of today. The court order makes it clear that DHS does not have to accept new applications.
Certain aspects of the court order are not entirely clear. The court has ordered DHS to accept applications for renewals but DHS will reach its own determination as to the scope of the order. For example, does this mean that only those who could have renewed on 9/4/17 but failed to do so, meaning those whose status expired prior to 9/4 or whose status was expiring within 150 days of 9/5/17? That seems narrow to the point of uselessness as most of these people could have filed in October under the terms of DACA termination. Or does it mean that anyone whose DACA is expiring within 150 days of yesterday is allowed to apply. That would allow everyone whose DACA expires before June 8 to apply. That deadline would get extended every day that the injunction lives. In addition, is there are argument that people whose DACA expires after June 8 should also apply? The 150 day filing rule has never been hard and fast and it may be worth the long shot to apply to try to obtain additional time under DACA.
Thus, DACA renewals that may be subject to this rule are in four basic groups:
- Group 1- People whose DACA expired before 9/5/17 and failed to renew
- Group 2- People whose DACA expires before 2/2/18. (150 days from 9/4/17)
- Group 3- People whose DACA expires before 6/8/18. (150 days from court order)
- Group 4- People whose DACA expires after 6/9/18.
We believe that this order reflects the relative strength of claims to renew DACA. The further down you go in the groups, we believe that it is less likely that a renewal will be granted.
We also must note the possibility that the government will seek a “stay of the stay” in the appellate court. The government will certainly ask the appellate court to put the District Court’s decision on hold until it can rule on the legality of the administration’s order. That could have the result of delaying or causing to be rejected many applications. Nonetheless, we believe that DACA renewal applicants will have a strong claim to DACA extension if they get in applications for renewal now.
Filing for DACA extension at this time carries risks. We believe that the biggest risk is financial. The government already has relevant biographic information of DACA holders, so we do not believe that filing an extension request is likely to increase the risk of an enforcement action. We believe that filing now carries the risk that legal and filing fees could be lost if the courts decide that DHS does not have to honor these extension requests.
Finally, this injunction does not mean that Congress does not have to pass a clean Dream Act now. DACA holders deserve better than this piecemeal patchwork of options. They deserve permanent protection and residence.
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