For the first time in more than three years, the U.S. Department of Homeland Security (DHS) is accepting applications from first-time applicants for the Deferred Action for Childhood Arrivals (DACA) program. Hundreds of thousands of young people who would have otherwise become eligible for DACA since September 2017 now can apply for protected status.
DHS’s action was taken pursuant to a court order that also directed the agency to reverse other changes it recently made to the program. Those changes came via a memo from DHS Acting Secretary Chad Wolf that the court vacated because it found Wolf lacked legal authority to issue the memo.
In addition to directing DHS to take new applications, the court ordered the agency to reinstate two-year DACA terms and work authorizations that were shortened to one year by the memo. DHS must also resume taking applications for advance parole from DACA recipients, which allows them to leave and reenter the country.
In June, the U.S. Supreme Court vacated the department’s rescission of DACA, finding that it didn’t follow proper procedure in doing so. By vacating the rescission, the high court restored the DACA program to how it operated prior to its rescission in 2017.
However, DHS was free to take subsequent action to again rescind or otherwise modify the program. On July 28, Wolf issued his memorandum that once again shut down new applications and limited DACA protection and work authorization for current recipients to one-year terms, rather than two.
In a November ruling, U.S. District Court Judge Nicholas G. Garaufis found that DHS had not followed federal law governing succession of agency heads, and therefore Wolf was unlawfully acting as DHS secretary and lacked the authority to issue his DACA memo.
Last week, Garaufis ordered DHS to start accepting new DACA applications and make the other changes within three calendar days. DHS posted this information on its website this week.
Nothing is guaranteed
While this is a tremendous development for current and potential DACA recipients, the program’s future is not guaranteed. The Trump administration may appeal Garaufis’s decision, though time is running short.
Although President-elect Joe Biden has vowed to continue the program, ongoing litigation brought by the state of Texas and others challenges its legality. A hearing in that case is scheduled for December 22 before a judge who has expressed skepticism about DACA and has already ruled against it. Should that case go against DACA, the Biden administration would likely appeal the decision, and DACA’s fate may wind up back in the Supreme Court, which did not rule on the legality of the program itself in its prior decision.
This legal cloud over DACA underscores the importance of congressional action. The American Association of Community Colleges has long advocated, and will continue to do so, for legislation such as the Dream Act that provides Dreamers with a path to citizenship, something that not even DACA can provide.