DACA Reinstated with DHS Modifications

On July 17, the U.S. District Court for the District of Maryland restored the Deferred Action for Childhood Arrivals (DACA) program on remand from the Supreme Court.

DACA was rescinded on September 5, 2017 by the Department of Homeland Security. On May 15, the Court of Appeals for the Fourth Circuit reversed the rescission.

On June 18, the Supreme Court also held that the rescission or diminishment of DACA is “arbitrary and capricious” and a possible violation of the Administrative Procedures Act (APA).

On July 17, the U.S. District Court for the District of Maryland affirmed these rulings, stating, “The DACA rescission and actions taken by Defendants to rescind the DACA policy are arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A); The rescission of the DACA policy is VACATED, and the policy is restored to its pre-September 5, 2017 status;”

It also ruled that the information-sharing policies regarding DACA announced on September 5, 2017 are void. These information sharing policies allowed the U.S. Immigration and Customs Enforcement (ICE) to access personal information from DACA recipients’ applications.

On July 28, Acting Secretary of Homeland Security Chad F. Wolf issued a memorandum in response to the court decisions, announcing changes to DACA while the Department of Homeland Security (DHS) evaluates the future of the program.

As a result of such changes, effective immediately, DHS would:

Reject all initial requests for DACA;

Reject applications for Employment Authorization Documents in connection with initial applications for DACA;

Reject all pending and future applications for advance parole, save for exceptional circumstances;

Adjudicate requests for renewal of DACA and related employment authorization from current beneficiaries;

Limit the period of renewed DACA granted after July 28, 2020 to one rather than two years; and

Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents or advance parole for the remaining duration of their validity periods.

These changes announced by DHS Acting Secretary Chad F. Wolf could still face legal challenges.