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Trump’s Newest Interim DACA Policy Ignores the Supreme Court

July 28, 2020
Beata Leja

On June 18, 2020, the U.S. Supreme Court ruled that the Trump Administration’s decision to cancel DACA was “arbitrary and capricious,” effectively reinstating the program in full to its version under President Obama. Additionally, on July 17, 2020, the U.S. District Court for the District of Maryland ordered the U.S. Citizenship & Immigration Services (USCIS) to immediately begin accepting new DACA applications for individuals who never had DACA, as well as Advance Parole applications for DACA beneficiaries who have compelling reasons to travel abroad.

On July 28, 2020, the Trump Administration issued an interim memorandum titled Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” which instructs the USCIS to make “certain immediate changes to the DACA policy to mitigate [its] enforcement policy concerns while [it] conducts a full and careful consideration of the full rescission.” In other words, USCIS will illegally ignore the decisions by the U.S. Supreme Court and U.S. District Court and plans to fully rescind the DACA program in its entirety in the near future.

Effective immediately, USCIS plans on doing the following with regard to DACA:

    • – Reject all pending and future initial DACA applications filed by individuals who have never had DACA, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
    • – Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
    • – Adjudicate all pending and future DACA renewal requests and associated applications for Employment Authorization Documents for individuals who have previously had DACA, but limit the period of DACA validity to only 1 year.
    • – Refrain from terminating or revoking any previously issued DACA or Employment Authorization Documents issued prior to the July 28, 2020 interim policy.

Despite this, in certain cases, we are nevertheless recommending that individuals who are eligible for initial DACA and for Advance Parole file for these benefits during this time. USCIS’s anticipated rejection of these applications is a direct violation of the U.S. Supreme Court and U.S. District Court in violation of law. There is no doubt that this interim policy will be subject to further litigation in federal court in the near future and having been rejected under this policy will give applicants standing in such cases. As a result, they may either be able to refile or join a class action lawsuit on the basis of being improperly rejected. Further, the Trump administration clearly seems adamant on completely rescinding the program in the near future, and the window of opportunity, even if perilous, may not last long.

Please consult with an immigration attorney to determine if you should file for your initial DACA or Advance Parole despite this interim policy.

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