Earlier this fall, Attorney General Jeff Sessions announced the repeal of the Deferred Action for Childhood Arrivals (DACA) program through "wind-down" provisions leading to full termination by March 5, 2018.  On January 9, 2018, U.S. District Judge William Alsup, in San Francisco, temporarily halted the wind-down by granting a preliminary injunction to reinstate DACA.  This has been seen as a victory for DACA recipients (also known as "Dreamers"), who were facing expiring work authorization and would otherwise be subject to deportation come March.

The Trump Administration, in an attempt to fulfill its campaign promise, set out to eliminate DACA on questionable legal grounds that it supposedly violated U.S. Constitutional and Administrative law.  It claimed that the program was an illegal exercise of power by the Executive Branch. However, legal experts around the country argue that DACA is well within the legal framework of the Constitution, because DACA is a program of deferred action, a form of prosecutorial discretion.  They conclude that the Executive Branch has full authority to extend prosecutorial discretion to DACA recipients, allowing them to maintain lawful status in the U.S.

In The Regents of the University of California and Janet Napolitano, et al. v. United States Department of Homeland Security and Kristjen Nielsen, the Court held that the elimination of DACA was based on a mistake of law and thus necessitated the injunction. The Court concluded that the decision to rescind DACA was not a discretionary agency decision, nor that any prohibition under the Immigration and Nationality Act (INA) applied, allowing for judicial review. Further, the Court confirmed standing for the plaintiffs in the case. On these grounds, the Court allowed for the case to move forward and granted provisional relief, allowing DACA to be reinstated to the same terms and conditions prior to the September 5, 2017 repeal.  Although the Government could appeal this decision, this order forces the Department of Homeland Security to continue renewing applications until a final judgment is reached and litigation has concluded. 

The Court's decision was announced while lawmakers are engaged in a public negotiation with President Trump over immigration reform. Despite a bipartisan consensus, the White House rejected a bipartisan deal while making derogatory comments, setting off a media firestorm.  No deal has yet been reached, and positions have already shifted among negotiations. In the meantime, many wonder if DACA will be included in the upcoming spending bill on January 19, or whether opposition to the bill, because of the DACA issue, will trigger a governmental shutdown.

Green and Spiegel is closely monitoring the developments and negotiations regarding the DACA program.  If you have any questions, please contact us immediately. 

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