On November 14, 2020, United States District Judge Nicholas G. Garaufis of the Eastern District of New York reinstated the Deferred Action for Childhood Arrivals (DACA) program, which is now accepting new applications. DACA protects eligible immigrant youth who entered the United States as minors and have accrued unlawful presence. DACA provides a two-year period of deferred action from deportation and a work permit.

The July 2020 Memorandum That Is Now Invalid

In July 2020, Chad Wolf, Acting Secretary of Homeland Security, suspended portions of the DACA program through a memorandum (the “Wolf Memorandum”). The memorandum instructed the Department of Homeland Security (DHS) personnel as follows:

• Reject all pending and future initial requests for DACA

• Reject all pending and future applications for advance parole – which is necessary for the DACA recipients to travel from and re-enter the United States

• Require DACA recipients to renew their status under the program annually rather than every two years

The Lawsuit

The primary issue before the Court was whether Wolf’s position as Acting Secretary of Homeland Security was valid; the Court ruled that he had unlawfully ascended to the position. The lawsuit challenged the Wolf Memorandum on the following grounds:

• That Wolf was not lawfully serving as Acting Secretary of Homeland Security, and therefore lacked the authority to issue the memorandum

• The memorandum was arbitrary and capricious, in violation of the Administrative Procedure Act (APA); Judge Garaufis ruled that Wolf was not serving as Acting Secretary of Homeland Security when he issued the July 28, 2020, memorandum

This ruling by Judge Garaufis restores the Obama-era program and mandates that the DHS to post a public notice stating that it is accepting new applications. This marks the first time the agency will be accepting new applications since 2017.

DACA Reinstated and Applications Accepted

Thousands of undocumented immigrant youths will now be eligible to apply for the program. Currently, around 640,000 immigrants are enrolled in the DACA program. Immigration advocacy groups celebrated the ruling, stating that this will put at ease many undocumented immigrants brought to the US as minors. The ruling is a huge victory for people who have been waiting to apply for DACA for the first time,” said Veronica Garcia, staff attorney at the Immigration Legal Resource Center.

It is important to note that the Court reinstated the DACA program only because it held that Chad Wolf was not legally serving in the capacity of acting secretary of the DHS when he issued the July memorandum. This ruling can be appealed by the DHS and the Department of Justice. The Attorneys General of Texas and other states await decisions on pending cases, where they have asked the Court to declare DACA as unlawful. Immigrant advocates assert that, until Congress passes DACA as law, the program cannot be viewed as a permanent solution providing immigrant youth a firm path to citizenship. Therefore, all eligible applicants for the DACA program are urged to file their applications as soon as possible.