A recent Texas federal court ruling leaves the status quo intact and DACA extensions still possible. However, the judge signaled that he could ultimately strike down the DACA program. In our 04.10.18 advisory, we reported that as of that date, applications to extend DACA status were still being processed, along with accompanying employment authorization document (“EAD”) applications, but that an individual who had never held DACA status was barred from filing a new application. In addition, advance parole authorization for reentry after travel outside the United States was no longer available. This situation remains unchanged as of this date, and those who have previously held DACA status (even if it has since lapsed) may apply to renew their DACA status and their EADs as there are no new changes to the DACA program at this time. Those seeking to renew should consult their legal advisors as soon as possible. DWT’s immigration lawyers are available to assist.
Seven states challenged the legality of the Deferred Action for Childhood Arrivals (“DACA”) program, and sought a nationwide injunction in the case of Texas v. Nielsen. In his ruling dated August 17, 2018, U.S. District Court Judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas, found that the DACA program was likely unlawful, but declined to grant an injunction, in view of the existence of numerous other injunctions keeping the DACA program in place for the time being. For example, also on August 17, 2018, the U.S. District Court for the District of Columbia issued an order in NAACP v. Trump that permits renewal applications, but no new DACA applications or applications for advance parole. Judge Hanen is the same federal judge who granted a February 16, 2015 injunction blocking the implementation of the Deferred Action for Parents of Americans (“DAPA”) and an expansion of the DACA program. A 4-4 split of the U.S. Supreme Court in United States v. Texas left his ruling intact.
In the recent Texas case, Judge Hanen found that the balance of private interests fell in favor of the denial of the requested relief, considering that the plaintiff states had not sought the relief earlier, and that enjoining the program now would be contrary to the public interest, as it would “upset the balance” created by the earlier injunctions keeping the DACA program in place. However, considering that Judge Hanen also stated the plaintiffs had “clearly shown” that DACA is likely unlawful, and certified his opinion for appeal to the Fifth Circuit, it is likely that he will ultimately rule against DACA when he eventually enters his decision on the merits. This will likely result in conflicting decisions in the various Federal Circuits, with the issue ultimately decided by the U.S. Supreme Court.
However, at this time, it is still possible to renew DACA status and associated EADs. The immigration lawyers at Davis Wright Tremaine LLP are available to assist or to answer employers’ questions related to their employees’ DACA issues. We will issue DACA updates from time-to-time, as litigation on this issue continues.