A federal judge late last week ordered the Trump administration to restore the DACA program back to what it was when President Obama created it — including a backdoor pathway to citizenship that’s already been used by more than 14,000 “Dreamers.”
Judge Nicholas Garaufis, a Clinton appointee to the federal bench in New York, also ordered Homeland Security to start accepting brand new applications for Deferred Action for Childhood Arrivals program for the first time in more than three years.
“HOMELAND SECURITY DEPARTMENT is DIRECTED to post a public notice, within 3 calendar days of this order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests,” the judge wrote in an order.
For the last three years the program has granted renewals to those already in DACA, but has refused any new applications from people that hadn’t previously applied.
It also severely curtailed issuance of advance parole, which allowed DACA recipients to leave the country and re-enter — and in doing so, get in line for a green card, if they could find a valid reason.
Friday’s ruling reversing those moves was widely hailed by immigrant rights advocates.
“The ruling is a huge victory for people who have been waiting to apply for DACA for the first time,” said Veronica Garcia, a lawyer at the Immigrant Legal Resource Center.
Democrats on Capitol Hill urged President Trump to accept and follow the ruling, rather than attempt to appeal it and prolong a legal battle — particularly since it could all be moot in less than two months.
Presumptive President-elect Joseph R. Biden has said he would revive the full DACA program as soon as he takes office.
Democrats also said the restart of the full DACA program opens a window for Congress to attempt to pass legislation that would give Dreamers full citizenship rights. Mr. Trump attempted that in 2018, but Democrats balked at his terms, which included border wall money and changes to the legal immigration system.
The DACA program grants a two-year stay of deportation, and work permits, to those who are approved. The program is for immigrants who came to the U.S. illegally as children.
The program has been a legal mess for years.
President Obama originally said he didn’t have the power to grant such a categorical amnesty — then reversed himself in the months before the 2012 election and decided he did have power after all.
A 2014 attempt to expand the program was shot down by the courts.
Three years later, when he took office, Mr. Trump attempted a full phaseout.
After lengthy court battles from New York to California, the Supreme Court weighed in this summer, ruling that while the president has the power to end DACA, Mr. Trump cut too many corners in how his team went about it.
That left the program in place, but gave the administration a chance for a do-over.
Soon after the high court ruled, acting Homeland Security Secretary Chad F. Wolf attempted that do-over, announcing changes to limit DACA permits to one year rather than two, and to block new applications. He also announced restrictions on advance parole.
But Judge Garaufis says Mr. Wolf is not legally serving as secretary, based on a convoluted series of events tracing back to Mr. Trump’s leadership carousel at the top of the department.
If Mr. Wolf is not legally serving, any moves he made were also illegal, the judge ruled.
More than 925,000 people had applied for DACA through the end of the Obama administration, and more than 770,000 had been approved. About 30,000 more applied and were approved in the months before Mr. Trump announced the phaseout.
At that time, there were about 690,000 people actively protected by DACA. As of this June that figure stood at 645,000, showing a slow decline without new applicants to replenish the numbers.
Some of that decline is people being thrown out of the program for criminal records. But other times it’s people who have won a more permanent legal status — such as through advance parole.
Those with DACA status are generally barred from leaving the U.S., but they can apply for advance parole, which is predetermined permission to leave and then be readmitted — or “paroled” back into the country — at a port of entry when they’re ready to return.
Under U.S. law, people paroled into the country can then apply to adjust their status to legal residents if they have a qualifying family relationship.
Advance parole is supposed to be granted for humanitarian, educational or employment reasons.
But immigrant rights activists developed workarounds, with some colleges even creating foreign study junkets so students could use them as a chance to apply for advance parole.
More than 14,000 DACA recipients took advantage of advance parole to adjust their status, according to data released last year by U.S. Citizenship and Immigration Services.