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Litigation Update on Deferred Action for Childhood Arrivals (DACA)

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May 8, 2018

By Karlie Dunsky and Tejas Shah

In September 2017, Attorney General Jeff Sessions announced that the Trump administration would terminate the DACA program, which provides protection from removal and work authorization to nearly 700,000 young people who have been unlawfully present in the U.S. since a very young age. The termination announcement allowed a brief period during which individuals whose DACA benefits expired between Sept. 5, 2017 and March 5, 2018 could file a renewal request. All other requests for DACA benefits were to be rejected starting on Sept. 5, 2017.

However, since the announcement, multiple lawsuits challenging the legality of the administration’s termination of DACA have resulted in nationwide injunctions perpetuating (within certain limitations) the issuance of DACA benefits. With the recent filing of Texas v. United States by the State of Texas and other plaintiffs, an eventual circuit-split is probable. The Supreme Court will likely ultimately grant certiorari and take up the issue of the legality of the administration’s actions in terminating the DACA program.  

The timeline below includes significant markers in relevant DACA litigation:

  • 9, 2018: U.S. District Court for the Northern District of California in DHS v. Regents of the University of California issued a temporary injunction directing the Department of Homeland Security (DHS) to maintain the DACA program on a nationwide basis on the program’s original terms and conditions , except that DHS is not required to accept applicants for first-time requestors, nor is it required to issue advance parole documents to those requesting permission to travel abroad and re-enter the U.S. lawfully. The Supreme Court denied certiorari on Feb. 26, 2018, allowing the U.S. Court of Appeals for the Ninth Circuit to consider an appeal in due course, preserving the injunction for the time being.
  • 13, 2018: U.S. District Court for the Eastern District of New York in New York, et al. v. Trump et al. issued a preliminary injunction to maintain the DACA program on the same terms and limitations as the California court’s injunction. Plaintiffs in this case are the State of New York, plus 14 other states and the District of Columbia.
  • April 24, 2018: U.S. District Court for the District of Columbia issued a temporary injunction in NAACP v. Trump and Princeton v. Trump ordering DHS to begin accepting applications for first-time applicants by late July, which would fully restore the DACA program to its status prior to September 2017. However, the injunction was stayed for 90 days to allow the DHS an opportunity to provide a valid legal reason for terminating DACA.
  • May 1, 2018: Texas, along with 6 other states, filed Texas, et al. v. United States in the U.S. District Court for the Southern District of Texas. The lawsuit argues that the DACA program is unlawful and asks that the court order DHS not to issue any additional DACA benefits. The case does not request removal of DACA beneficiaries or rescission of benefits already granted. These states had previously threatened to file this lawsuit in 2017, which prompted the Trump administration’s September announcement terminating the program. The case is assigned to District Court Judge Andrew Hanen, who, in February 2015, issued an injunction blocking implementation of former President Barack Obama’s 2014 initiatives extending DACA and establishing the DAPA programs.

DHS currently continues to accept applications for the renewal of DACA benefits based on the injunctions issued by courts in California and New York. Applicants whose past benefits have expired can request new benefits. DHS also has been accepting “early” applications for renewal of benefits for those whose benefits expire more than 150 days from the time of application. However, early renewals are generally being issued for a 2-year period from the approval date, meaning that the extension period does not extend a full 2 years from the original expiration. No applications are being accepted at the time for those who have never been granted DACA benefits in the past (“new applicants”). Given the extensive litigation in this area, however, these conditions could change at any time.

Chicago Makes Headway on Sanctuary City Litigation at the U.S. Court of Appeals for the Seventh Circuit

The City of Chicago recently triumphed when the Seventh Circuit Court of Appeals upheld a nationwide injunction against the Department of Justice in the City of Chicago v. Jefferson B. Sessions (7th Cir. April 19, 2018). On April 30, 2018, the Seventh Circuit court denied the Attorney General’s motion for a partial stay of the injunction issued by the lower court in September 2017 related to the Trump administration’s imposition of new information-sharing requirements for certain federal grants. Earlier in April, the Seventh Circuit upheld the lower court’s finding that Chicago had established a likelihood of success on the merits of its argument that the Attorney General lacks the authority to impose “notice” and “access” conditions to Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) funds.

The “notice” and “access” provisions at issue condition receipt of Byrne JAG funds upon 1) local authorities’ providing federal agents advance notice of the scheduled release from state or local corrections facilities of individuals “suspected of immigration violations,” and 2) local authorities’ providing immigration agents with access to detention facilities and individuals who are detained. The new restrictions on Byrne JAG funds align with President Donald Trump’s executive order issued on January 25, 2017 titled “Enhancing Public Safety in the Interior of the United States,” which effected a warning that the administration would take economic measures to punish jurisdictions that it deems to be “sanctuaries” for immigrants or whose policies fail to comply with the administration’s information-sharing requirements. In response to the filing of the suit, the Department of Justice issued a statement saying, “No amount of federal taxpayer dollars will help a city that refuses to help its own residents.”

The City of Chicago filed the lawsuit in August 2017, asking the court to declare unlawful the Trump Administration’s imposition of immigration-related conditions requiring increased information-sharing with the federal government to Byrne JAG funds. These conditions run contrary to Chicago’s policies restricting the sharing of information with federal agencies related to immigration status. On September 15, 2017, the U.S. District Court for the Northern District of Illinois granted the city’s requested preliminary injunction to temporarily enjoin the Attorney General from nationwide imposition of “notice” and “access” conditions, pending a final outcome of the lawsuit.

The Seventh Circuit court’s decision ensures that, pending a final decision in the case, these provisions will not be used to deny any jurisdiction access to Byrne JAG funds. This allows Chicago to maintain its current policies, at least for now.

The injunction does not prevent implementation of the “compliance” condition on the grant, which requires that cities certify compliance with 8 U.S.C. §1373, which states that a government entity or official “may not prohibit, or in any way restrict” the sending to and receiving from federal immigration agencies information pertaining to individuals’ immigration status. The Seventh Circuit upheld the lower court’s denial of the City’s request to enjoin this portion of the new requirements.

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