Abogado Ray Explains:
On Friday July 17, 2020, United States District Court Judge Paul W. Grimm ordered USCIS to begin accepting new DACA applications and advanced parole applications. Read the decision here. The decision ended the case filed by Casa de Maryland and other plaintiffs against the Federal Government. To no surprise the Federal Judge found the Trump Administration acted in an arbitrary and capricious manner in ended the DACA program. The Judge clearly ordered the government to return the DACA program to as it was prior to the recission and further ordered that no government official could rely on the DACA recission order.
While this is an amazing decision, there are two major factors to keep in mind.
- Trump can still end the DACA program.
President Donald Trump has stated he will issue a new order rescinding the DACA program. The Supreme Court decision does specifically state he is free to rescind the program again, providing he follows their analysis within the decision. A second recission of the program would negate the District Court’s decision today and a separate lawsuit would need to be filed against the Trump administration. Today’s District Court decision only addresses the first recission, so a second recission would have to be litigated again, possibly for years, to get back to the point we find ourselves today.
So, it’s possible someone can spend many hours gathering documents and filling out the appropriate forms only to have the President rescind the program again.
2. USCIS can claim the order only applies to 4th Circuit
USCIS is currently led by someone who has been less than generous to DACA eligible individuals. It is possible that USCIS could hold the position that they will only accept applications for new DACA applicants if they live within the 4th Circuit. This is because the Federal Judge who issued the decision is based in Maryland, which is within the 4th Circuit Court of Appeals. USCIS should simply announce they will accept from all jurisdictions, but given their first statement after the Supreme Court decision, it is possible they hold the more conservative position. We hope USCIS accepts all new applications, but if they don’t they may need to be sued in at least one district court in each Federal Circuit.
If we live outside of hte 4th Circuit Should We Still Apply?
Any new applicants for the DACA program should be aware of the possibility of Trump either issuing another recission of the program or USCIS claiming the order only applies within the 4th Circuit. If Trump again cancels the program before the application is sent, or possibly even adjudicated, all of the hard work of gathering documents, filling out applications, and paying for services may go down the drain.
Likewise, USCIS taking the evil position of only applying the order with the 4th Circuit could mean a lawsuit is needed within that district to get USCIS to begin taking applications.
Our best advice is to evaluate the two possibilities above and make an informed decision if you wish to accept the risk before moving forward. No one should be mislead and told they will be guaranteed to have their application accepted or approved.