Blog Post | 107 KY. L. J. ONLINE | October 5, 2018
DACA in 2018: Renewals Continue, but the Legality of the Program is Still up in the Air
Marianna C. Januario
Deferred Action for Childhood
Arrivals (DACA), has been a prominent feature in the news for the past several years.
DACA was created by President Obama’s executive order in June 2012.
Since his presidential campaign Trump has been threatening to end the DACA
program, and in September 2017, the program was terminated.
However, things are not that simple.
First, it is important to understand
what the DACA program actually is. There seems to be confusion as to what DACA
is and what rights it affords its recipients. In its most simple terms, DACA is
not a legal status.
DACA is merely an agreement between the applicant and the U.S. government that indicates
the applicant is illegally in the U.S., and the U.S. government is going to
defer deporting them.
There are several requirements that must be met in order to request DACA, such
as his/her age and date of arrival, length of residency, completion of schooling,
and limits on criminal records (including no felonies or significant
must be renewed every two years and the applicant must prove they still qualify
for the program. One
of the main criticisms of DACA has been that it encourages minors to illegally
enter the US. However,
no arrivals after June 15, 2007 are eligible for the program.
The main benefit of DACA is receipt of a social security number and
authorization to legally work.
Now, back to the termination of
DACA. The September 2017 termination plan was to stop accepting new DACA
applications immediately, but allow those with current DACA permits which were
set to expire before March 5, 2018 to apply for renewal if they did so before
October 5, 2017.
The DACA program was set to expire completely by March 5, 2020.
After the termination was announced, multiple lawsuits challenged the Trump
administration’s actions. Two federal courts, the Eastern District Court of New
York (February 13, 2018) and the Northern District Court of California (January
9, 2018), issued preliminary injunctions against the government’s termination
of DACA and required U.S. Citizenship and Immigration Services (USCIS) to
resume accepting DACA renewals.
In addition, the U.S. District Court for the District of Columbia has issued
two separate orders striking down the termination of DACA and requiring its
However, the D.C. Court has partially stayed its order, postponing the day by
which USCIS would have to begin accepting new, as well as renewal, applications
Due to this litigation, USCIS is currently accepting applications for DACA
renewals, but is still not accepting applications for new DACA permits.
Currently, the most important case
to arise under DACA has been Texas v.
Nielsen, in which Texas along with Alabama, Arkansas, Louisiana, Nebraska,
South Carolina, and West Virginia filed suit against the federal government in
the U.S. District Court for the Southern District of Texas challenging the
original 2012 DACA program.
This case was brought in May 2018 and raises the same legal claims of 2015’s Texas v. United States,
and claims that DACA is illegal as a violation of substantive and procedural
requirements of the Administrative Procedure Act and the Take Care Clause of
the U.S. Constitution.
Plaintiffs had already threatened to sue the federal government if DACA was not
terminated by September 5, 2017.
This case was filed in retaliation to the injunctions ordered by the New York,
California, and D.C. courts earlier this year, which plaintiffs argue could
indefinitely extend DACA.
The plaintiffs also filed a motion for preliminary injunction to prevent USCIS
from accepting any DACA applications during the pendency of the lawsuit.
On August 31, 2018, Judge Hanen issued an order denying the request for
preliminary injunctive relief.
This is not an adjudication on the claims plaintiffs filed against DACA. Judge
Hanen’s reasons for denying the injunctive relief are twofold: (1) there has
been an almost four-year delay between the decision in Texas v. United States, and the filing of this suit;
and (2) there is already a great reliance on the program and to try to un-do
DACA with only an injunctive order would be a “great risk to many” and “does not
make sense nor serve the best interests of this country.”
Ultimately, given the delay in bringing suit against DACA, the interests of the
defendants and the public outweigh those of the plaintiffs.
This is not to say that Judge Hanen
will uphold DACA. In fact, in his order, the judge states that a true DACA
program can only be created by Congress.
In Texas, the Court did not rule on
the legality of DACA;
the Courts in that case sustained the legal challenges to the DAPA (Deferred
Action for Parents of Americans and Lawful Permanent Residents) Program and
other expansions to the DACA program.
However, Judge Hanen also points out that “DACA and DAPA are basically
identical, and there is no legal ground for ‘striking DAPA that wouldn’t apply
to DACA’ (and certainly no legal ground for striking Expanded DACA that does
not apply to DACA itself).”
Based on Judge Hanen’s comments in this order, it is very possible that in the
near future DACA will be officially terminated. If that happens, the only way
to resurrect DACA would be through Congressional action, and in today’s
political climate, it does not seem likely that any immigration reform would
successfully make its way through Congress.
Staff Editor, Kentucky Law Journal,
Volume 107; J.D. Candidate, The University of Kentucky College of Law (2020);
B.A., Smith College (2017).
 Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Serv., https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca (last visited Oct. 3, 2018) [hereinafter DACA].
Edelman, Trump Ends DACA Program, No New
Applications Accepted, NBC News (Sept. 5, 2017),
 DACA, supra note 2.
Napolitano, Exercising Prosecutorial Discretion with Respect
to Individuals Who Came to the United States as Children,
U.S. Dep’t of Homeland Sec. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf;
Renew Your DACA, U.S.
Citizenship & Immigr. Servs., https://www.uscis.gov/archive/renew-your-daca
(last visited Oct. 3, 2018).
Linda Qiu, Why Common Critiques of DACA
Are Misleading, N.Y. Times (Sept. 8, 2017), https://www.nytimes.com/2017/09/08/us/politics/why-common-critiques-of-daca-are-misleading.html.
supra note 2.
supra note 3.
of Current DACA Litigation,
Nat’l Immigr. L. Ctr. 1,
(last updated Sept. 6, 2018); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260
(E.D.N.Y. 2018); Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., 279 F.
Supp. 3d 1011 (N.D. Cal. 2018).
NAACP v. Trump, 298 F. Supp. 3d 209 (D.C. Cir. 2018); Memorandum Opinion, Trustees
of Princeton Univ. v. United States, 1:17-CV-02325 (D.C. Cir. Apr. 29, 2018).
of Current DACA Litigation, supra
note 13, at 1.
 DACA, supra
 See Memorandum Opinion and Order at 1, Texas v. Nielsen, No. 1:18-CV-00068 (S.D. Tex. Aug. 31, 2018).
 See generally Texas v. United States, 86
F. Supp. 3d 591 (S.D. Tex. 2015) (This case was appealed to the 5th Circuit and
Supreme Court as Texas v. United States, 809 F.3d 134 (5th Cir. 2015) then, United
States v. Texas, 136 S. Ct. 2271 (2016). Both Courts upheld the decision of the
Southern District Court of Texas.).
 Memorandum Opinion & Order, supra note 17, at 1.
of Current DACA Litigation, supra note 13, at 6.
Opinion & Order, supra note 17, at
 Id. at 115.
 Id. at 117.
 Id. at 115.
 Id. at 116.
 Id. at 115.
* Featured image by Molly Adams licensed under CC BY-SA 2.0