Obama-era DACA Program Reinstated by New York Federal Court Order in Vidal v. Wolf

Written by Taher Kameli & Chathan Vemuri

In what counts as a severe blow to the Trump administration’s revamped immigration system in its final month, the U.S. District Court for the Eastern District of New York issued an order to reinstate the Obama administration’s Deferred Action for Childhood Arrivals program (DACA) to its pre-Trump administration status.[1]

 

Before President Trump tried to end it in September of 2017, DACA served to permit young immigrants without legal status but had been brought over as children, to live and work legally in the U.S.[2] This was part of an entire line of litigation surrounding DACA, starting with the Trump administration’s initial attempts to discard DACA, continuing with extensive litigation challenging this attempt, culminating in a Supreme Court decision in June of 2020 which found that the procedure by which the President and the Department of Homeland Security (DHS) tried to rescind DACA was  “arbitrary and capricious” and therefore in violation of the Administrative Procedures Act.[3] However, the Supreme Court did not decide on the question of DACA’s legality, effectively leaving that for others to figure out.[4] Yet throughout this process, DACA’s application changed drastically to the detriment of new applicants, whose applications were paused, while only previous beneficiaries of DACA were allowed to renew their protections under the program.[5]

 

On December 4th, 2020, a federal district court has risen to the occasion to formally strike Trump’s attempts to rescind DACA head-on and his ruling is seen as a relief for undocumented immigrants who arrived as children.[6] In the case, Vidal v. Wolf, the U.S. District Court for the Eastern District of New York vacated the Memorandum of Acting Secretary for Homeland Security Chad Wolf (the “Wolf Memorandum”) which changed DACA in line with the Trump administration’s goals of cracking down on undocumented immigration in response to the June Supreme Court decision vacating Trump’s rescission of DACA on administrative grounds.[7] Crucially, the District Court found (in perhaps the most egregious aspect about this Memorandum) that Wolf wrote this Memorandum while he was Undersecretary of Homeland Security (and therefore without authority to write it) and later retroactively re-signed it as Acting Secretary after being appointed as such in November of this year; as such, the Court found the Wolf Memorandum to be invalid due to Wolf not lawfully serving as Acting Secretary.[8]

 

The Court also ordered the Department of Homeland Security (DHS) to re-open the program and accept “first-time requests for consideration or deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017.”[9] This effectively restores DACA to its Obama-era state before President Trump came to office. The District Court also required that the DHS extend existing deferred action and employment authorization documents (“EADs”) to two years rather than the one year grant under the Trump administration.[10] Furthermore, the District Court ordered the U.S. Government “to produce a status report on the DACA program to the Court by January 4, 2021,” which would include data such as how many first-time DACA applications were received, approved, denied, and rejected between November 14th and December 31st of 2020, the number of renewal requests received and rejected in that time and how many applications such as first-time, DACA renewal and parole request, were received, approved, denied or rejected under the Wolf Memorandum making changes to DACA.[11]

 

The decision has been welcomed by those eligible for DACA and by attorneys fighting the Trump administration’s decision.[12] Additionally, the United States Citizenship and Immigration Services (USCIS) had declared on its website that the original pre-2017 version of DACA had been restored.[13] Yet questions remain as to what next steps are to be taken. Already, it is being anticipated that the U.S. Government would appeal the decision and a federal judge in Texas may rule against this rescission in another DACA case.[14]  Furthermore, a major problem for the new ruling would be the fact that the previous June ruling in Department of Homeland Security v. Regents of the University of California was a 5-4 decision when the relatively liberal justice Ruth Bader Ginsberg still was on the Bench.[15] With her passing and the appointment of hardline conservative justice Amy Coney Barrett to Ginsberg’s seat as well as the fact that several members of the Court (Republican appointees) thought DACA was illegal, a 6-3 conservative to liberal could very easily rule against DACA should the Eastern District Court’s decision be appealed that far.[16] It is also possible that, should the Senate remain in the hands of the Republican party at the end of the Senate elections, the incoming Biden administration would find a hard time getting serious (not to mention less vulnerable) immigration reform passed, for which DACA was only a temporary arrangement.[17]

 

It is also worth mentioning that hardline immigration policies have been a feature of both Democratic and Republican administrations over the last 15 to 20 years (give or take), with President-elect Joe Biden serving as Vice President in an Obama administration that deported record numbers of undocumented immigrants, exceeding even his predecessor.[18] It’s not clear exactly how far the President-elect deviates from this legacy, despite his assurances to the rising left-wing flank of the Democratic Party. While the President-elect talks of preserving DACA and pushing for serious immigration reform, he has also retained many of the same people in charge of Obama’s more disastrous policies, including Cecilia Muñoz.[19] She served as an immigration advisor to the Obama administration and helped overlook and defend some of his most controversial policies such as his separation of immigrant families (targeted at parents), and defending his mass deportations as being legally necessary despite being unfortunate.[20] Not to mention defending former President Obama’s decision to deploy the National Guard to the border states, saying “as long as Congress gives us the money to deport 400,000 a year, that’s what the administration is going to do.”[21]Yet despite protests against her by immigration activists, the President-elect saw fit to appoint her to his transition team as he prepares to enter the White House.[22] Biden has already promised to challenge Trump’s immigration policies. Yet aside from the promise to continue the relatively safe DACA program (which has Bipartisan support even during the Trump years[23]), given the track record of his associates and the wing of the Democratic Party he served in so well, it’s not clear if this pledge means he will necessarily meet the key demands of immigration activists, aside from functioning as nebulous moral grandstanding about “healing the soul of the nation”.[24] Grandstanding meant to rally a voter base sickened of the past four years of the Trump administration.

 

All in all, the victory for DACA in the Eastern District Court for New York is rightly welcomed and celebrated by those fighting President Trump’s hardline anti-immigration policies. Yet the question remains whether this victory can continue its momentum with radical and necessary changes to the US immigration system, serve as sufficient while only making a few changes to the status quo, or be a brief respite before being struck down by a newly minted overwhelmingly Conservative Supreme Court. Overall, this remains positive news to potentially move immigration policy beyond the Trump era.

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the Eastern District Court for New York’s decision in Vidal v. Wolf as well as concerns you may have about its continued viability in the coming months.

[1] Federal Judge Orders Full Restoration of DACA — And That New Applicants Be Admitted, LAist (Dec. 4,

[2] Id.

[3] Misra, Tanvi, DACA is Back. Now What? Bloomberg.com (Dec. 8, 2020, 3:01 PM CST) available at https://www.bloomberg.com/news/articles/2020-12-08/what-the-latest-daca-ruling-means-for-immigrants

[4] Id.

[5] Id.

[6] Id.

[7] Vidal v. Wolf, 2020 U.S. Dist. LEXIS 228328, 22 (E.D.N.Y. Dec. 4, 2020).

 

[8] Id.

[9] Id. at 23.

[10] Id.

[11] Id. at 20-21, 24-25 (This is the full list of what the Court-ordered status report must include:

(1) The number of first-time DACA applications received, adjudicated, approved, denied, and rejected from November 14 until December 31, 2020; (2) the number of renewal requests received, adjudicated, approved, denied, and rejected over that time period, and (3) the number of advance parole requests received, adjudicated, approved, denied, and rejected over that time period.

○ (1) the number of first-time applications for consideration of deferred action under DACA received and rejected pursuant to the Wolf Memorandum; (2) the number of DACA renewal applications and applications for EADs that were granted for a period of only one year [*25]  pursuant to the Wolf Memorandum; and (3) the number of advance parole requests received, approved, denied, and rejected pursuant to the Wolf Memorandum. The Government shall ensure that this data includes all persons in the certified Subclass defined it in the court’s November 14 Memorandum & Order, and shall also provide those metrics as applied to the Subclass, broken out from the total; Also, the Wolf Memorandum was a memorandum prepared Acting Secretary of Homeland Security Chad Wolf, which made changes to the Deferred Action for Childhood Arrivals (“DACA”) program on July 28, 2020. This was in response to the June 18th, 2020 Supreme Court decision in Department of Homeland Security, et al. v. Regents of the University of California, et al., which struck down President Trump’s termination of DACA for violation of the Administrative Procedures Act. It found it to be “arbitrary and capricious.” See Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1910-1915 (2020).)

 

[12] Wadood, Ramis, Following WIRA Win, Government Publishes Notice of DACA Restoration, Yale Law School Blog (Dec. 7, 2020) available at https://law.yale.edu/yls-today/news/following-wirac-win-government-publishes-notice-daca-restoration#:~:text=Following%20a%20December%204%2C%202020,to%20its%20pre%2D2017%20form.

[13] Id.

[14] Id.

[15] Millhiser, Ian, A Federal Court Just Reinstated DACA, and The Implications Go Far Beyond Immigration, Vox (Dec. 5th, 2020, 1:02 PM EST) available at https://www.vox.com/2020/12/5/22155815/daca-court-nicholas-garaufis-batalla-vidal-chad-wolf-homeland-security-joe-biden-trump (This article also discusses the problems the new decision would pose to the incoming Biden administration if the Republicans were to enjoy their majority in the Senate and how it could hinder his ability to enact far-reaching liberal changes in light of these impediments.)

[16] Id.

[17] Dickerson, Caitlin, and Shear, Michael D., Judge Orders Government to Fully Reinstate DACA Program, N.Y. Times (Dec. 4th, 2020) available at https://www.nytimes.com/2020/12/04/us/daca-reinstated.html

 

[18] Marcetic, Branko, Biden’s Immigration Moves Are Making a Mockery of His Vow to “Heal the Nation’s Soul, Jacobin (Nov. 19, 2020) available at https://jacobinmag.com/2020/11/joe-biden-immigration-trump-wall-border

[19] Id.

[20] Id.

[21] Id. (citing Obama Official Defends Immigrant Deportations, PBS Frontline (aired Oct. 18th, 2011) available at https://www.pbs.org/video/frontline-obama-official-defends-immigrant-deportations/)

[22] Id.

[23] Cowan, Richard, Bipartisan Group of Lawmakers Pushes DACA Immigration Bill, Reuters (

[24] Marcetic, Branko, Biden’s Immigration Moves Are Making a Mockery of His Vow to “Heal the Nation’s Soul, Jacobin (Nov. 19, 2020) available at https://jacobinmag.com/2020/11/joe-biden-immigration-trump-wall-border