This week, a New York judge refused to modify or clarify a state order that would resume the acceptance of granting of Deferred Action for Childhood Arrivals (DACA) applications. This comes over large confusion about the New York order in conjunction with a recent Texas order.

In 2021, a Texas order required that the U.S. Department of Homeland Security stop approving new applications for DACA. The order reasoned that the Biden Administration “misapprehended” the interactions of a December 2020 Texas order and a New York court order, which required the government to accept first-time, renewal, and advance parole DACA requests. Nearly 80,000 immigrant applicants requested clarification of the Texas order, as to compare it to the New York order.    

The class of immigrants found discrepancies for applicants between the time U.S. Citizenship and Immigration Services should “accept” their applicant in accordance with the New York order and the time the USCIS determines whether to “grant” their applicant, which is prohibited by the Texas order. Issues with the two competing orders arose, as several applicants submitted their applications within days of the New York order being issued. However, they were still left waiting for a decision. The Texas order, being shortly issued after the NY order, did not permit the government to grant any applications, despite accepting them.

In light of the Texas order, applicants who already paid $495 in fees to capture biometric data, were left without any decisions. The government, despite accepting applicants, refused to process biometrics or take other actions that would result in a final decision.

U.S. District Judge, Nicholas G. Garaufis stated that modifying the requested relief was “well beyond the purpose” of the New York court. Further, he reasoned that while the applicants have been invariably harmed, the changed circumstances were not directly connected to the objectives of the New York order. The NY order was a memorandum set aside by former Homeland Security Secretary, Chad Wolf. However, it did not reimpose or mandate the complete reinstatement of DACA itself.

The order can be modified only if changed factual or legal circumstances have changed. These changes would have to make compliance with the order unworkable or nearly impossible, due to unexpected challenges or would be damaging to the public interest. Judge Garaufis stated that the most favorable argument the applicants could make is that of public interest.

The decision has been widely criticized, as some have stated the disappointment in a lack of relief for nearly 100,000 DACA-eligible applicants. Law360 stated the ruling allows the government to hold thousands of DACA applicants in “limbo” without any protections. They have further urged the Biden Administration to direct DHS to act swiftly on existing DACA applications that continue to be stalled and issue final decisions.

The Fifth Circuit is anticipating making its own decision on DACA in the coming months. Juliana Macedo do Nascimento, the Deputy Director of Federal Advocacy of United We Dream, has urged to Biden administration to be “bold and proactive” in issuing protections, rather than awaiting court decisions.

If you have questions about DACA or any other immigration-related issue, contact us at ILBSG. Our team of attorneys work closely with our clients to ensure they get the right advice for their particular situation.

 

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