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Young immigrants in New York file new challenge to protect DACA

As DHS head moves to 'reconsider' program, plaintiffs ask judge to force officials to accept new applications, continue protections

A group of young immigrants in New York filed a new challenge Friday against the Trump administration's attempt to again rescind the Deferred Action for Childhood Arrivals, an Obama-era program that has allowed more than 825,000 people to seek protection from deportation. 

For nearly three years, the Trump administration has attempted to undermine DACA, but that effort was rebuffed in June when the U.S. Supreme Court ruled 5-4 that the administration's decision to end DACA was "arbitrary and capricious." 

However, nearly six weeks later, Trump administration officials again moved to alter the program, even as the agency considers a complete dismantling of DACA. 

While DACA recipients came to this country as children, on average around age 7, in the intervening years, they have grown up and begun to have children of their own. In 2017, a report from the U.S. Citizenship and Immigration Service noted that the average age of DACA recipient was around 24-years-old, and now around 254,000 U.S. born children have parents who are DACA recipients, and about 1.5 million people live in households with at least one DACA recipient.

The acting head of Homeland Security Chad Wolf, wrote a July 28 memo that pending his "full reconsideration of the DACA policy," officials should "reject" all pending and future new requests for DACA, and shorten DACA renewals to one year, rather than two. Wolf also instructed officials to reject pending and future applications for what the agency calls "advance parole," which allows DACA recipients to travel outside the U.S. "absent exceptional circumstances."

Advocates sharply criticized Wolf's memo, arguing that the decision "gut" DACA was "made unilaterally by President Trump and his administration," and that the administration was "consciously choosing to needlessly throw Dreamers’ lives into turmoil with this decision." 

In the 63-page complaint, the group said that Wolf and other Trump administration officials had "sowed confusion" among those impacted by the Supreme Court’s decision, "first by denouncing the decision as having 'no basis in law' and then by refusing to abide by its directive to return to the status quo." 

"Less than six weeks after the Supreme Court ruling, Defendants compounded the harm by issuing a new memorandum dismantling the DACA program, thereby prolonging the daily uncertainty faced by those who have, or are eligible for, DACA," the group said in their legal challenge. "This latest assault on DACA is no less unlawful than the first." 

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Led by Chief Justice John Roberts, and joined by justices Ruth Bader Ginsberg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, the high court ruled on June 18 that the 2017 decision to end DACA was "arbitrary and capricious," and that when former DHS Secretary Elaine Duke—who replaced John Kelly who became the White House Chief of Staff—rescinded DACA, she violated the Administrative Procedure Act. 

However, the court's decision does not determine whether DHS may rescind DACA. As Roberts put it, "All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so." 

Wolf argued that "as the Department continues looking at the policy and considers future action, the fact remains that Congress should act on this matter," and issued his July 28 memo, which restricts DACA. Wolf wrote that "in light of the Supreme Court’s decision to vacate the Duke Memorandum and remand to the Department of Homeland Security, and in my capacity as the Acting Secretary of Homeland Security, I am considering anew the DACA policy." 

In his memo, Wolf argued that "whether to retain the DACA policy presents significant questions of law and legal policy," and argued that in the interim the agency should make several changes to the program.

"More importantly for present purposes, having considered those materials, I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission. At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration," Wolf said. 

The acting secretary's memo "requires" DHS "to immediately, categorically, and retroactively deny first-time applications for DACA, cut the renewal periods for current DACA recipients in half, and severely limit the availability of advance parole for DACA recipients. 

The plaintiffs—represented by Make the Road New York, the National Immigration Law Center, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School—have asked a federal judge in New York invalidate Wolf's July 28 memo and force the government to process first-time DACA applications, advance parole requests, and renewals under the terms of the original DACA program.

"This directive is cruel, heartless, and unlawful," the group wrote. 

"In addition, the Wolf Memorandum and the agency’s actions to implement it are arbitrary and capricious," the group wrote. They also challenged an interim policy issued on August 21 that blocked changes made during the gap in time following the court's decision, but before Wolf issued his memo. DHS "violated due process," by refusing to give people who applied during that period "a fair opportunity to have their applications adjudicated." The agency failed to provide notice that it would reject first-time applications and most advance parole requests, they said, and changed the terms of renewal without notice. 

They also challenged Wolf's memo, arguing that he was "improperly designated as Acting DHS Secretary and thus lacked the authority to issue the Wolf Memorandum." referring to the Government Accountability Office announcement on August 14 that Wolf—and the acting deputy secretary Ken Cuccinelli—had been improperly installed in their roles violating the Federal Vacancies Reform Act, which guides the order of succession from one official to another. 

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The complaint amends the existing lawsuit, Batalla Vidal v. Wolf, which was filed in 2017 and was one of five lawsuits that were consolidated by the Supreme Court for consideration, under Department of Homeland Security v. Regents of the University of California. That lawsuit was led by former Homeland Security Secretary Janet Napolitano, the ex-governor of Arizona who now serves as the president of the University of California, and authored the 2012 memo that created DACA during the Obama administration. 

Overall about 1.3 million people are eligible for protections under DACA from about 30 different countries, according to the Migrant Policy Institute.

"The July 28 Wolf memo was another cruel and divisive move that unlawfully upends the lives of more than a million immigrant youth while Trump continues to dismantle DACA," said Marielena Hincapié, executive director of the National Immigration Law Center. "With our courageous plaintiffs and co-counsel, we continue fighting back. We remain steadfast in our commitment to ensure that the Trump administration is accountable to the law and immigrant youth remain safe and have the freedom to thrive here at home." 

In a statement, Johana Larios, one of the plaintiffs, whose application for DACA was denied under Wolf's new memo, said that the administration "robbed" her of the chance to apply for DACA. "After coming within days of applying for DACA in 2017, I was hopeful after the Supreme Court decision in June that I would finally be able to access DACA and get a stable job, provide for my family and breathe a sigh of relief knowing I wouldn't be at risk of being separated from my children," she said. "Just like me, there are thousands of other youth who are stuck in the same situation, and that is why I decided to join this lawsuit. We’re ready to fight for DACA because our home is here." 

“For the past three years, the Trump administration has continuously attacked DACA, leaving immigrant youth like me at risk of being separated from our loved ones,” said Sonia Molina, a DACA recipient and member of Make the Road New York. "DACA opened the doors to many opportunities. I have been able to finish college, help support my family, and give back to my community, even if just in two-year increments. The recent DACA memo is a direct attack on me and thousands of DACA recipients and DACA-eligible youth. We urge USCIS to reopen DACA to new applications, and fully reinstate renewals to a two-year period."

"Immigrant youth won a monumental victory at the Supreme Court, but the Trump administration insists on trying to lawlessly dismantle and end DACA,” said Javier. H. Valdés, Co-Executive Director of Make the Road New York. "Trump’s latest attack is an imminent threat to thousands of eligible immigrant youth who are being denied the opportunity to apply for DACA for the first time, and threatens the livelihood of hundreds of thousands who have been safeguarded under the DACA program. For the past three years, we have fiercely fought alongside immigrant youth and we will continue to do so every step of the way." 

 The NILC said that as a result of the Trump's administration's three year campaign, an estimated 300,000 people have not been able to apply for the program. This is based on an analysis by the Center for American Progress, which argued that Trump administration officials should reopen the program after the Supreme Court's decision. The group also estimated that 55,000 people have aged into eligibility over the past three years, and should have been allowed to apply for the first time. 

Over the past 8 years, more than 825,000 people have been able to apply for protections under DACA. This includes more than 200,000 people who are serving in the "frontlines" of the country's response to COVID-19, including nearly 15,000 teachers and nearly 30,000 health-care workers, CAP said.

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Hundreds in Tucson demonstrate in 2017 for Deferred Action for Childhood Arrivals, an Obama-era program that protected people who were brought to the U.S. as children from deportation for two years and gave them a work visa. DACA was ended by the Trump administration in 2017, however, legal challenges have kept the program alive.

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