On April 24, 2018 U.S. District Judge for the District of Columbia John Bates found the memorandum issued by the Department of Homeland Security (DHS) terminating the Deferred Action for Childhood Arrivals (DACA) program legally insufficient, holding that DHS’s rescission of DACA was “virtually unexplained” and as such “unlawful.” As such, Judge Bates vacated the rescission memorandum unless DHS can offer a stronger basis for ending the program affecting hundreds of thousands of undocumented immigrants, and allowed the government ninety (90) days from the entry of his Order to provide such an explanation.

Judge Bates’s decision represents the first time that any court has vacated DHS’s “Rescission Memorandum,” thus potentially allowing new enrollees to participate in the program for the first time since DACA was terminated, as well as possibly allowing for advance parole again. New enrollees and advance parole are currently not allowed under the preliminary injunctions in place in the DACA lawsuits pending in California and New York.

If DHS fails to provide an explanation by July 24, 2018 that meets Judge Bates’ requirements, DACA will be vacated in its entirety and DHS will be required to maintain the program for current enrollees and to accept and process applications from new enrollees who meet the program’s eligibility rules. 

Cohen Milstein represents the NAACP, the AFT, and the UFCW in this lawsuit, which has been consolidated with another lawsuit, styled Trustees of Princeton University et al. v. United States of America et al.

Case Background

On September 18, 2017, The National Association for the Advancement of Colored People (NAACP), the country’s original civil rights organization, filed a lawsuit against President Trump, Attorney General Jeff Sessions, Department of Homeland Security Acting Secretary Elaine Duke, U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”) the Department of Homeland Security (“DHS”), and the United States of America, in defense of young, undocumented immigrants of color eligible for Deferred Action for Childhood Arrivals (DACA).

The NAACP, the AFT, and the UCWF bring this action on behalf of their members throughout the country who are currently enrolled in, and who applied to enroll in, the DACA program.

There are approximately 800,000 DACA recipients across the country, and two million who are eligible for the program had it not been unnecessarily and unconstitutionally cancelled. The vast majority of DACA registrants and those eligible for DACA are people of color. More than 80% of registrants are of Mexican origin according to The Migration Policy Institute. Additionally, about 36,000 immigrants of African origin and over 20,000 youth from Caribbean nations of the Dominican Republic and Jamaica were also eligible for DACA.

The lawsuit alleges that the defendants unlawfully reneged on their promise to protect young, undocumented immigrants of color living in the United States. The Amended Complaint alleges that the Trump Administration violated the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act and the Regulatory Flexibility Act.

On March 14, 2018, Cohen Milstein argued three issues before the Court: 1) against the motion to dismiss the case, as the government has requested, 2) seeking summary judgment for the entire case, as requested by the plaintiffs, or, alternatively3) for a preliminary injunction to block the rescission of DACA and/or the government’s use of information provided by DACA registrants until the case was heard on the merits.

There are three similar cases making their way through the courts, although none of the plaintiffs in the other cases have sought summary judgment. Judge Alsup, in the Northern District of California, entered a preliminary injunction allowing current DACA registrants to renew their status, but does not allow for advance parole or new registrants, until the case proceeds to judgment. The appeal of the issuance of the preliminary injunction was heard recently by the Ninth Circuit. A similar injunction has been entered in the Eastern District of New York by Judge Garafis, and an appeal of that injunction is slated to occur before the Second Circuit in the near future. Judge Titus, a district court judge in Maryland, has issued a narrower injunction which prohibits the government from using the information collected by DACA registrants for enforcement purposes. Both Plaintiffs and Defendants are appealing Judge Titus’ decision to the Fourth Circuit.

The case is styled: National Association for the Advancement of Colored People v. Donald J. Trump, in his official capacity as President of the United States, et al., Case No. 1:17-cv-01907, U.S. District Court, District of Columbia, which was consolidated with Trustees of Princeton University et al. v. U.S. et al., Case No. 1:17-cv-02325, U.S. District Court, District of Columbia