Join Club

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.

Recent Stories

The Arlington County Board approved zoning changes to accommodate “missing middle” housing units, such as duplexes, triplexes, and small multi-family buildings, in areas designated for single-family homes. While some argue…

Sponsored by Monday Properties and written by ARLnow, Startup Monday is a weekly column that highlights Arlington-based startups, founders, and local tech news. Monday Properties is proudly featuring 1515 Wilson Blvd in…

From Ballston to Pentagon City to D.C. to Fairfax County, there’s a burning smell that seems to be lingering outside. Those trudging out on their lunch breaks caught a whiff…

Is crime on the rise in Arlington? It depends on which Arlington County official you ask. Police Chief Andy Penn told the County Board last Thursday that crime rates rose…

Synetic Theater Camps are a wildly fun, highly accessible choice for young people who love moving, playing games, and making memories. Registration is open now for Summer Camps (sessions June 20-August 25) and there are even a few spots left for Spring Break camp, April 3­-7.

Located in National Landing, these performance-based camps are designed for students of all ages – no theater or performance experience required.

Led by professional teaching artists, campers learn acting, movement, and technical theater skills through the lens of Physical Theater. Physical Theater incorporates acting, movement, dance, mime, and acrobatics. If you’ve seen a Cirque du Soleil performance, you’ll find many similarities.

Most first-time campers are new to the performing arts, and teaching artists are well-versed in engaging students at all levels. Parents and campers report that one of the best parts of Synetic is the community, with many families returning year after year because they feel a strong sense of belonging.

Read More

Submit your own Announcement here.

EDBS Dental Billing Solutions is pleased to announce that it has achieved compliance with the federally mandated standards of the Health Insurance Portability and Accountability Act (HIPAA) through the use of Compliancy Group’s proprietary HIPAA methodology, The Guard® compliance tracking software, and HIPAA Seal of Compliance®.

The HIPAA Seal of Compliance is issued to organizations that have implemented an effective HIPAA compliance program through the use of The Guard, Compliancy Group’s proprietary compliance tracking solution.

Clients and patients are becoming more aware of the requirements of HIPAA compliance and how the regulation protects their personal information. Forward-thinking providers like EDBS Dental Billing Solutions choose the HIPAA Seal of Compliance to differentiate their services.

“Since the nature of our business being exclusively remote, we take HIPAA compliance very seriously. With the help of Compliancy Group, we are able to take steps to fortify our systems to protect PHI information and familiarize each employee about HIPAA and how we can further safeguard PHI data.” said EDBS Dental Billing Solutions founder Goldie De Leon.

Read More

Submit your own Announcement here.

WHS Spring Festival

Join us at the WHS Spring Festival on April 22, 2023, from 10am- 3pm at Wakefield High School(main parking lot). Come out to shop, play, and eat!

Shop local vendors, arts & crafts, new and used items, food vendors/trucks, and

District 27 Toastmasters 2023 Virtual Conference

District 27 Toastmasters invites you to its annual conference where you can hear phenomenal speakers, attend professional development and personal growth seminars about leadership, negotiation, communication, teamwork, and mentorship. Learn how to develop your personal story and how to improve


Subscribe to our mailing list