Statutes of Liberty: Initial DACA Applications Enjoined, Renewal Applications Still Accepted, Pass the Aspirin

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Litigation over the constitutionality of Deferred Action for Childhood Arrivals (“DACA”) took a turn this week, courtesy of Federal District Court Judge Andrew Hanen. In this brief explainer, we will first provide the facts about what has happened to DACA, and then we will offer our prediction about the future of the program.

First, the facts. Judge Hanen’s injunction prevents the Department of Homeland Security from approving any “initial” DACA applications. What is an initial application? An initial application is an application for recognition under DACA by someone who has not had it before. Judge Hanen’s injunction leaves “renewal” applications for DACA completely untouched, via a peculiar two-step: the injunction enjoins the application of DACA in full, then temporarily stays the injunction for current recipients of DACA. Here is the relevant quotation from the injunction:

“With respect to DACA recipients who obtained that status on or before the date of this injunction and DACA renewal applications for these existing recipients (regardless of when the renewal applications are submitted) the order of immediate vacatur and the permanent injunction… are temporarily stayed until a further order of this Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court.”

Why would Judge Hanen stay his own injunction? He recognized that a large class of stakeholders — including U.S. citizens and businesses — has come to depend on the DACA program, and it would be unjust to immediately terminate the program while litigation over its constitutionality remains pending. Again, the relevant quotation from the Order:

“Hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program. […] Given these interests, it is not equitable for a government program that has engendered such significant reliance to terminate suddenly.”

Here is our class-by-class summary of the state of play, as of July 22, 2021. (It is even more important than usual to emphasize that this is not legal advice to you as an individual. Talk to an attorney!)

1. If you already have DACA, your DACA designation and work permit remain valid.
2. If you have never had DACA and your first application is pending, the Department of Homeland Security cannot approve the application. The application will remain pending for the foreseeable future.
3. If you have a DACA renewal pending, the Department of Homeland Security will adjudicate it as normal.
4. If you are eligible to renew your DACA, you can submit your renewal application and it will be adjudicated as normal.
5. If you are eligible to apply for DACA for the first time, you can submit your application but it will remain pending indefinitely.

Now, here is our (short) prediction about what comes next.

The worst-case scenario for DACA recipients — that DACA will simply be declared an unconstitutional use of executive power — is highly unlikely. The Supreme Court already showed, in DHS v. Regents of the University of California et al., that it is extremely queasy about invalidating DACA. And the Biden Administration has indicated that it intends to defend DACA to the hilt, so the program faces no threat from the Executive Branch.

There are many roads to a better outcome for DACA recipients. Here are a few:

• DHS could issue a regulation that places DACA on a sounder legal footing. The process for doing so under the Administrative Procedure Act would occur in tandem with further litigation and could take several years. But that would permanently answer both Justice Roberts’ concern in DHS v. Regents and Judge Hanen’s concern in Texas v. United States. Indeed, in Judge Hanen’s memorandum opinion, he invites DHS to issue a regulation to settle the matter.
• The Biden Administration plans to appeal — seeking, presumably, to both overturn Judge Hanen’s order and to quash the injunction. The appeal to the 5th Circuit could succeed in either or both of these ways.
• The Biden Administration could issue a superseding executive action. This strikes us as unlikely, but, if immigration reform fails in Congress, the Biden Administration might well try it.
• Congress could pass a law. (Don’t bet on it.)

Our wager is on a variation of (2): the Fifth Circuit will take up the appeal and refuse to invalidate Judge Hanen’s order, but the Fifth Circuit will lift the injunction pending resolution at the Supreme Court.

As always, we would love to hear your thoughts and we will do our best to respond.