The March 5, 2018 date the president set in September 2017 for the Deferred Action for Childhood Arrivals (“DACA”) program to sunset came and went, with no clear deadline established for when Congress will act.  The White House, state attorneys general, and immigrant advocacy groups urged prompt action, with demonstrations around the country advocating for legislative relief to provide a path to citizenship for “DREAMers,” the name informally used to refer to the estimated 800,000 beneficiaries of DACA.  For now, the DACA program remains active, based on a California federal court’s continuing preliminary injunction.

Status of Court Action

The administration petitioned the US Supreme Court to review the preliminary injunction of the US District Court for the Northern District of California, but the court rejected its request, stating that lower courts must first rule in the litigation. The government is expected to appeal the injunction to the Ninth Circuit within the next month.  Earlier in February 2018,  Judge Nicholas G. Garaufis of the US District Court for the Eastern District of New York became the second District Court Judge to issue a nationwide preliminary injunction requiring USCIS to continue to accept applications to renew DACA benefits, the scope of which is the same as the California injunction.

White House, After Rejection of Bipartisan Congressional Proposal, Now Urges Congress to Act

Last month, the president rejected a bipartisan proposal that coupled border security funding with a DACA fix, stating that only a bill that includes all four prongs of the framework  the White House proposed in January 2018, such as the Secure and Succeed Act of 2018 introduced by Sen. Charles Grassley (R-Iowa) in February 2018, would be acceptable.  The four prongs are:  a path to citizenship for DREAMers, funding for a wall on the border between the United States and Mexico, elimination of various family-based immigration sponsorship for all but US citizen-sponsored nuclear family members, and termination of the annual “green card”  lottery for diversity visas.  But on March 5, 2018,  White House press secretary Sarah Huckabee Sanders said in a press conference that the Trump administration still expects Congress to reach an agreement on DACA, a point confirmed in a tweet from the president.

State Attorneys General, Advocacy Groups, and DREAMers Similarly Press for Congressional Action

Attorneys General Xavier Becerra of California, Janet Mills of Maine and Brian Frosh of Maryland, who were among the 15 state attorneys general who filed the September 2017 federal lawsuit challenging the government’s rescission of DACA, held press conferences on March 5 calling on Congress to act in a call with reporters.   Advocacy groups, including the American Civil Liberties Union, United We Dream, and MoveOn launched an advertising campaign to pressure the president specifically and also engaged in demonstrations outside the White House.

DREAMers across the nation similarly demonstrated, including outside the Democratic National Committee’s headquarters in Washington, DC, where, dressed in white wigs, canes, and walkers, they attested to the lengthy, 17-year wait for Congress to provide a legislative solution, as the DREAM act was originally introduced in August 2011.

The Original Terms of President Obama’s Issuance of the DACA Program in 2012

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” creating an administrative program that permitted certain individuals who came to the United States as children and meet several criteria—including lacking any current lawful immigration status—to request consideration of deferred action for a period of two years, subject to renewal, and eligibility for work authorization.  Under the  criteria established in the June 15, 2012 memorandum, individuals could apply for deferred action if they had come to the United States before their 16^th birthday; were under age 31; had continuously resided in the United States since June 15, 2007; and were in school, graduated or had obtained a certificate of completion from high school, obtained a General Educational Development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Individuals were ineligible if they had been convicted of a felony or a significant misdemeanor, but were considered eligible even if they had been convicted of up to two other misdemeanors.

Continuing Options for DACA Renewals Under the Terms of the Nationwide Preliminary Injunctions

Due to federal court orders on January 9, 2018 (Northern District of California) and February 13, 2018 (Eastern District of New York), USCIS has resumed accepting requests to renew a grant of deferred action under DACA, as noted in its Fact Sheet of February 14, 2018. Under the terms of both federal temporary injunctions, the DACA program will continue to be operated under the terms that were in place before it was rescinded on September 5, 2017, except that USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA and the agency will not accept or approve advance parole requests from DACA recipients. Those DACA beneficiaries whose deferred action expired on or after September 5, 2016, may file their DACA request as a renewal. Those DACA recipients whose deferred action expired before September 5, 2016, or whose DACA status was terminated at any time, must follow the instructions for filing a new, initial request.