DACA Renewals will continue to be accepted while legal battle over DACA proceeds

On January 9th, 2018, the United States District Court for the Northern District of California enacted a nationwide injunction to the current administration’s plans to block DACA. US District Judge Alsup’s order states that while the lawsuit on DACA is pending, DACA grantees may continue to apply for DACA renewals. However, USCIS is not required to process applications for initial DACA applications (applications made by those who have never been granted DACA before). Information about when applications will be accepted by USCIS is still unclear. This post will be updated as information becomes available by the Department of Homeland Security.

You can read an excerpt of this ruling below, or Download the pdf document in full.



D. Scope of Provisional Relief.

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, 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, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.

Nothing in this order prohibits the agency from proceeding to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency from granting advance parole in individual cases it finds deserving, or from granting deferred action to new individuals on an ad hoc basis.

The agency shall post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order. The agency shall keep records of its actions on all DACA-related applications and provide summary reports to the Court (and counsel) on the first business day of each quarter.20

By way of explanation, while plaintiffs have demonstrated that DACA recipients, as well as their families, schools, employers, and communities, are likely to suffer substantial, irreparable harm as a result of the rescission, they have not made a comparable showing as to
individuals who have never applied for or obtained DACA.

This order will not require advance parole. Unlike the widespread harm to plaintiffs and our economy that would result were the 689,800 DACA enrollees to lose their ability to work in this country, plaintiffs have not demonstrated that comparable harm will occur as a result of DACA recipients’ inability to travel abroad. True, Individual Plaintiffs Jirayut Latthivongskorn and Norma Ramirez describe professional disadvantages that may result if they are unable to travel internationally. These, however, do not amount to hardships justifying a provisional injunction requiring DHS to resume accepting applications for advance parole. However, as stated, nothing in this order would bar individuals from asking for such agency relief or bar the agency from granting it in deserving cases.

With respect to geographical scope, this order finds a nationwide injunction is appropriate. Our country has a strong interest in the uniform application of immigration law and policy. Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States.

In February 2017, our court of appeals considered this very issue in Washington v.
, 847 F.3d 1151, 1167 (9th Cir. 2017), and upheld a nationwide injunction imposed by a single district court, observing that limiting the geographic scope of an injunction on an immigration enforcement policy “would run afoul of the constitutional and statutory
requirements for uniform immigration law and policy” and that, as here, “the government ha[d] not proposed a workable alternative.” Indeed, the Fifth Circuit reached the same conclusion in determining the appropriate scope of an injunction over DAPA, Texas, 809 F.3d at 187–88,holding that uniform application of the immigration laws justified a nationwide injunction. So too here.21

Limiting relief to the States in suit or the Individual Plaintiffs would result in administrative confusion and simply provoke many thousands of individual lawsuits all over the country. The most practical relief is to maintain DACA in the same manner to which the agency and recipients are accustomed, subject to the exceptions above noted.

20) A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.” Brewer , I 757 F.3d at 1060. The relevant status quo is the legally relevant relationship between the parties before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission of DACA, the status quo before which was that DACA was fully implemented. Accordingly, plaintiffs’ requested preliminary injunction is not mandatory. But even if it were, plaintiffs have demonstrated that sufficiently serious irreparable harm would result to warrant even a mandatory injunction.

21) Oddly, the government’s contrary authority is Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir. 1987), a decision in which our court of appeals upheld a nationwide injunction and held, “[t]here is no general requirement that an injunction affect only the parties in the suit,” and “nationwide relief in federal district or circuit court [is permitted] when it is appropriate.” Bresgal merely observed that “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170. Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general proposition that a remedy should match the injury alleged, see, e.g. Town of Chester v. Laroe Estates, Inc. 137 S. Ct. 1645, 1650 (2017), to the contrary.