DACA Program Preoccupies Courts and Confounds Congress

Since September 2017 when the Trump Administration announced the termination of the Deferred Action for Childhood Arrivals Program (DACA), litigation and Congressional inertia have contributed to the creation of an uncertain future for DACA Program enrollees. On January 9, a federal district court enjoined the Administration from ending DACA on March 5, 2018, and at least until the case makes its way through litigation. This decision prompted the U.S. Citizenship and Immigration Services to restart the DACA program, which currently means that DACA program enrollees whose status expired on or after September 5, 2016 may now file a renewal application. Further, DACA program enrollees whose DACA status expired or terminated prior to September 5, 2016 may file new DACA applications. The order does not, however, allow new applications by persons who never had DACA status and does not permit persons in the DACA Program to travel outside the U.S. in advance parole status.

The Department of Justice appealed the federal court’s order, and the U.S. Supreme Court has agreed to hear the Justice Department’s appeal on an expedited basis, which allows the Court to issue a decision by mid-February. The Court also ruled that the Department of Homeland Security is not required to turn over documents relating to the Administration’s decision to end DACA, at least for now.

Meanwhile, the Second Circuit Court of Appeals is reviewing an order by a federal district court in Brooklyn that allows the court to review the Administration’s decision to terminate the DACA program.

While these DACA program-related cases proceed through the courts, Congress is attempting to legislate a resolution. A bipartisan group of Senators sent a DACA proposal to the President who rejected it, reportedly because it failed to end the family preferences provisions of current immigration law Most recently, 30 Democrats joined their Republican counterparts to end a three-day government shutdown by passing a temporary spending bill, but failed to negotiate a deal on DACA.  Senate Majority Leader Mitch McConnell committed to bring a DACA bill to the Senate floor if DACA and border security legislation has not been passed by the Senate by February 8 when the current funding legislation expires.

For questions about the DACA Program and how it could affect your employees and your business, contact Patrick W. McGovern, Esq., Partner in the firm’s Immigration Law Practice Group, at pmcgovern@genovaburns.com, or by phone at 973-535-7129.