July 23, 2021
A federal judge vacated the 2012 memo creating the Deferred Action for Childhood Arrivals (DACA) program, but stayed the ruling for existing DACA recipients, allowing the Department of Homeland Security to continue granting renewals of DACA protections.
“Neither this order nor the accompanying injunction requires DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take,” the ruling holds.
The stay on vacating DACA protections for current recipients is temporary, until the federal government takes “appropriate steps to remedy the shortfalls in DACA within a reasonable time,” including placing the policy in notice-and-comment rulemaking under the APA.
However, DHS is enjoined from approving new DACA applications, though it may continue to accept them.
Lawmakers are looking to include DACA in the reconciliation bill. The provision would need the approval of Senate Parliamentarian Elizabeth MacDonough, a former immigration lawyer, as well as the vote of all 50 Democratic Senators and near-unanimity among Democrats in the House. Several DACA bills have been introduced this year, but bipartisan talks have broken down in large part over the scope of the legislation.
Looking ahead: The ruling is the best case of a bad scenario, given the expected result of vacating the memo creating the program. An appeal to the U.S. Court of Appeals for the Fifth Circuit is anticipated. As has been the case since 2012, only legislative action can provide certainty for Dreamers.