DACA update: 7 states sue to force an end to DACA

11 May 18

UNITED STATES

In the latest lawsuit over the Deferred Action for Childhood Arrivals program, seven states sued the federal government last week to force an end to the beleaguered program.

The Obama-era program allows certain qualifying undocumented individuals brought to the U.S. as children to register with the federal government and apply for temporary employment authorization to work legally in the U.S. The Trump administration terminated the program as of March 5, 2018, but other litigation has kept the program alive for now.

The new lawsuit, led by Texas, asks a U.S. District Court to immediately rescind and cancel all DACA benefits as unlawful. The states, which also include Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia, allege that the Obama administration exceeded its authority in introducing the program.

Current status of DACA:

  • To comply with two injunctions by federal courts in California and New York, the Department of Homeland Security is required to continue to renew DACA benefits, including employment authorization, but is not accepting initial DACA applications. In February, the U.S. Supreme Court declined to take up the government’s appeal of the California ruling, thus leaving the orders in place for now. The rulings are on appeal, with arguments scheduled at the Ninth Circuit for May 15, and arguments at the Second Circuit expected this summer.
  • On April 24, under a separate ruling, a federal court in Washington, D.C found that DHS’ decision to terminate DACA was arbitrary and capricious. The judge gave DHS 90 days to issue a new order that provides justification for ending the DACA program, or the court will reinstate DACA fully. The significance of this ruling is that if DACA is fully reinstated, it will allow initial applicants, as well as renewal applicants, to apply for DACA benefits.
  • Congress has thus far failed to reach agreement on a legislative solution to making DACA permanent, though four competing bills are still in play. The House is considering a discharge petition requiring a vote on all bills and passage of the bill receiving the most votes.

BAL Analysis: The filing of the new lawsuit does not change the current status of DACA, and it is too early to predict how a court will rule in the case. While the Texas court is considered to be unsympathetic to DACA, the court’s authority will be constrained by the other court decisions. An unfavorable DACA ruling by the Texas court would probably lead to accelerated Supreme Court review. BAL is monitoring the litigation over DACA, including the July deadline set by the D.C. court, and will report any significant developments as the cases progress.  

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.