On August 3, 2018, Judge John D. Bates of the U.S. District Court for the District of Columbia ruled in favor of fully reinstating the Deferred Action for Childhood Arrivals (DACA) program but stayed the effective date of the court order for 20 days to allow the Department of Homeland Security (DHS) time to appeal.
In April 2018, the same judge ruled that DHS’s decision to rescind DACA was unlawful and its rationale for cancelling the program was insufficient. He ordered the DACA program to be fully restored pending the outcome of a 90 day stay, during which he gave DHS the opportunity to better explain its reasoning. Ultimately, Judge Bates was unpersuaded by DHS’s response and reaffirmed his original ruling. In his August 3, 2018, opinion, Judge Bates made clear that the issue is not whether DHS has the authority to rescind the DACA program; it is whether it can provide a “rational explanation” to substantiate its decision to do so. DHS now has 20 days to file an appeal and to seek a stay of the reinstatement pending the appeal, if applicable.
DACA, which was implemented in 2012 by then president Obama, provides work authorization and protection from deportation to qualified undocumented immigrants who were brought to the United States as children. The Trump administration moved to rescind DACA in September 2017, but two district courts in New York and California issued nationwide preliminary injunctions preventing the government from completely disbanding the program pending the outcome of the litigation on the matter. The injunctions preserved the rights of existing DACA beneficiaries (those who continue to meet eligibility requirements) to apply for renewals but did not require that new applications be accepted. Judge Bates’s opinion differs from the New York and California injunctions in that (1) it is a final order based on the merits as opposed to a preliminary order issued during the pendency of the case and (2) it would fully restore the DACA program and permit the filing of new applications.
Impact on Employers
Because Judge Bates delayed his order from taking effect for 20 days, the status quo for the DACA program remains in effect. Current DACA beneficiaries may continue to receive benefits and apply for two-year renewals of their status. DACA beneficiaries also remain work-authorized while their employment authorization documents are valid. Employers are expected to follow current law under which they are not permitted to treat DACA beneficiaries differently than any other employees.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these changes and will post updates on the Immigration blog as additional information becomes available.