On February 13, 2018, a U.S. district court in New York issued a nationwide preliminary injunction halting the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program. President Donald Trump had announced the rescission of DACA on September 5, 2017. The program’s end would result in the expiration of work authorization for DACA recipients. While that end has not been prevented by this latest development, the injunction offers DACA recipients concerned about the program’s fate a temporary reprieve. In its ruling, the court found that the Department of Homeland Security (DHS), despite having the legal authority to end the program, nevertheless failed to offer legally adequate reasons for doing so as required under the provisions of the Administrative Procedure Act (APA). For now, the government will continue allowing DACA applications and renewal requests to proceed as had been the case prior to the rescission announcement.
DACA was established in 2012 under the administration of President Barack Obama. The program provides relief to certain undocumented immigrants who were brought to the United States as children, allowing those who qualified to apply for deferred action from deportation and providing work authorization. Nearly 800,000 individuals now hold DACA status. Even after President Trump’s rescission announcement, certain DACA recipients whose authorization was to expire between the date of that announcement and March 5, 2018, were able to apply for a two-year renewal if they did so by October 5, 2017.
The (Limited) Impact From the Injunction
While the preliminary injunction effectively restores the DACA program to the status quo as of September 4, 2017—the day before the president’s rescission announcement—it does not go so far as to require that the government actually grant any particular DACA applications or renewal requests. In order to comply with the court’s order, the government need only continue to consider such applications and requests.
Furthermore, the court did not hold that the rescission of DACA itself was unlawful. Nor did it hold that DHS may not rescind the program. Upon remand, the agency is still free to end the DACA program, but it would need to put forward a more solid rationale that could pass muster under an APA challenge.
The New York district court’s injunction is the second such roadblock to the administration’s goal of winding down the DACA program. Another injunction issued by a federal district court in California on January 9, 2018, had already forced the administration to keep DACA in place on a nationwide basis. The administration appealed that order.
The Search for a Legislative Fix
While the fate of DACA and its beneficiaries, known as DREAMers, continues to be adjudicated in the courts, it has also been swept up as a central issue in recent battles over the budget on Capitol Hill. With the clock running down, some lawmakers have been searching for a deal on legislation that could afford DREAMers a means to stay in this country legally, but no consensus on a deal has been reached yet. Precise details and prospects for any such legislation are still evolving at this time.
Key Points for Employers
The court injunctions preserve the DACA program for now, although its ultimate status could still change. At present, employees who are DACA beneficiaries remain work-authorized throughout the validity period of their acceptable work authorization, and employers should rely on their Form I-9 compliance records and completed Form I-9 expiration dates to confirm employees’ work authorization expiration dates.
In addition, employers should not treat DACA beneficiaries differently from any other employees when taking steps to re-verify expiring work authorization under the Form I-9 rules. Employees have the choice to present acceptable identity and work authorization documents, and employers may not restrict an employee’s choice of acceptable documents during that process.
Any adverse action against an employee based on his or her DACA status would be premature at this point, and could carry consequences for the employer. Until and unless further legislative, executive, or judicial action affects the status quo, employers should not treat DACA employees in a manner different from other employees.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments on this issue and report on updates as they occur.