Bustos Law Firm

Archive for February, 2018|Monthly archive page


In Immigration on February 28, 2018 at 11:44 AM

On September 5, 2017, the Trump Administration rescinded the Deferred Action for Childhood Arrivals (DACA) program that had protected nearly 700,000 young undocumented immigrants brought to the U.S. as children from deportation. In a statement made after the decision was announced, President Donald Trump blamed President Obama for creating the program through executive authority, and urged Congress to come up with a solution. He also set a deadline of March 5, 2018 for Congress to address the issue. However, the Supreme Court has just given DACA recipients more time.

On September 8, 2017, the University of California filed a complaint challenging the Trump Administration’s rescission of the DACA program, and asking the court to enjoin the implementation of the rescission. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California ordered a halt to the federal government’s termination of DACA. In the case, Regents of the University of California, et al. v. Department of Homeland Security, et al., Judge Alsup ruled that President Trump’s rescission of DACA did not comply with the Administrative Procedures Act (APA), and granted a preliminary injunction blocking the end of the program while the case moves forward. As a result, U.S. Citizenship and Immigration Services (USCIS) was required to begin accepting DACA renewal applications again.

In a highly unusual move, the Trump Administration then sought to skip over the court of appeals by having the Supreme Court consider Judge Alsup’s January 9 order. The Supreme Court rarely hears a case before a lower appeals court has a chance to consider it. However, on February 26, 2018, the Supreme Court declined to hear arguments in this case, meaning DACA recipients can continue to renew their applications while the case works its way through the legal system.

It is important to note that by rejecting the Administration’s request, the Supreme Court is not ruling on the legal merits of the DACA program itself, or about the legal arguments regarding the Trump Administration’s decision to end DACA. The Court is, however, insisting that the case proceed the normal way, with the Ninth Circuit Court of Appeals hearing the Administration’s appeal of Judge Alsup’s order and the Second Circuit Court of Appeals hearing an appeal of a similar ruling by Judge Nicolas G. Garaufis of the U.S. District Court in Brooklyn, New York. On February 18, 2018, Judge Garaufis held that the recession of DACA was “arbitrary and capricious,” and that the equities and reliance interests favored an injunction.


DACA was established in 2012 in order to provide temporary relief from deportation to undocumented immigrants who were brought to the United States as children through no fault of their own. Those who qualified were allowed to apply for deferred action from deportation and work permits in two year increments. After President Trump’s rescission announcement, eligible DACA recipients whose authorization was to expire between the date of that announcement and March 5, 2018 were still able to apply for a two-year renewal if they did so by the deadline of October 5, 2017. However, many applicants missed the deadline for various reasons, and ended up losing their DACA status.


When President Trump first announced that DACA was being terminated, USCIS only allowed people with expiration dates between September 5, 2017 and March 5, 2018 to apply for renewal. However, under the Court’s ruling, that deadline does not apply. If you were previously granted DACA, you may now submit an application to renew your DACA, even if it has expired. USCIS, however, will not accept DACA requests from individuals who were not previously granted DACA. You can also apply for renewal if your last application was rejected specifically due to not meeting the October 5, 2017 deadline.

USCIS guidance states that recipients whose previous DACA expired on or after September 5, 2016, may still file a renewal request. However, persons whose DACA expired before September 5, 2016 must file a new initial DACA request. DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal, but may file a new initial DACA request. However, USCIS will no longer accept or approve advance parole requests from DACA recipients.

USCIS will continue to accept DACA renewal requests in accordance with the DACA policies in place before DACA was rescinded on September 5, 2017. USCIS has encouraged applicants to apply 150 to 120 days in advance of the expiration of their prior DACA grants. The DACA form instructions state that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. However, the DACA FAQs states that renewal requests received more than 150 days in advance of their expiration will be accepted by USCIS, but could result in an overlap between the applicant’s current DACA and their renewal DACA.

If you have received citations, been arrested, or been criminally charged or convicted since initially receiving DACA, you must gather evidence of these contacts with law enforcement or the courts. Under these circumstances, we highly recommend speaking to an attorney prior to applying. Due to the recent change in who is considered an “enforcement priority” by DHS, the risks associated with applying may be greater now than they were under the Obama Administration. Also, if you have a deportation order, voluntary departure order, or an administratively closed immigration case, we also highly recommend speaking to an attorney before applying to renew your DACA status.

It is also important to note that while the preliminary injunction by Judge Alsup effectively restores the DACA program to the status quo as of September 4, 2017, the day before the President’s rescission announcement, it does not go so far as to require that the government actually grant any particular DACA applications or renewal requests. In order to comply with the Court’s order, the government need only continue to consider such applications and requests.


Although the government could have sought a stay of Judge Alsup’s preliminary injunction, it did not do so. Thus, for now the government must continue to accept DACA renewal applications in accordance with Judge Alsup’s preliminary injunction. However, Judge Alsup’s ruling did not hold that the rescission of DACA itself was unlawful. Nor did he hold that DHS may not rescind the program. Upon remand, the agency is still free to end the DACA program, but it would need to put forward a more solid rationale for doing so that would survive a challenge under the APA. The renewal program may be available indefinitely or it may be stopped by another court depending on how the case proceeds in the courts, so if you are eligible to renew your DACA status, it makes sense to file your application as soon as possible.

Meanwhile, in spite of the Administration’s attempt to leapfrog the appeals process via the Supreme Court, Judge Alsup’s order temporarily extending the DACA program is still pending review in the U.S. Court of Appeals for the Ninth Circuit, and Judge Garaufis’s similar ruling is also pending review in the U.S. Court of Appeals for the Ninth Circuit. So far, the Administration has taken no steps to block either of these injunctions.
However, this most recent decision by the Supreme Court means these cases will likely have to work their way through the lower courts before any final ruling by the Court on the issue is possible. And, because that could take many weeks or months, this decision is also likely to further reduce pressure on Congress to act quickly on the fate of DREAMers.

While the fate of DACA and its beneficiaries, known as DREAMers, continues to be adjudicated in the courts, it has also been a central issue in recent battles over the budget on Capitol Hill. With the clock running down, some lawmakers have been searching for a deal on legislation that could afford DREAMers a means to stay in this country legally, but no deal has been reached thus far. The business and education communities have joined Democrats and many moderate Republicans in supporting the program, citing the contributions to society from the population and the sympathetic fact that many DREAMers have never known another home other than the United States.