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Dreamers and DACA supporters rally outside of the Supreme Court last month.
Last month, the Supreme Court ruled that the Trump administration had illegally rescinded the Deferred Action for Childhood Arrivals (DACA) program. As of July 13, the Supreme Court certified its judgment in the case, legally requiring the government to fully re-implement the DACA program.
While this should have cleared the way for new DACA applications and advanced parole requests, it’s unclear whether the U.S. Citizenship and Immigration Services has begun doing so. The agency’s only public acknowledgment of the Court’s ruling, which was delivered by Chief Justice John Roberts, was to question its legitimacy.
“I think they could be legitimately sued, and will be sued for contempt of court,” said Phil Wolgin, managing director for immigration policy at the Center for American Progress.
There is some legal disagreement about whether or not the Supreme Court’s ruling was in effect the day the opinion dropped, but at this point, 25 days after the opinion’s release, the government must, by law, comply.
Juliana Macedo do Nascimento, policy manager at United We Dream, said that she had heard from folks who applied for DACA as soon as the Supreme Court’s decision came out, and at least one was rejected on July 1. But as of July 13, when the Court’s judgement was certified, applications have good standing to be accepted—and if they’re denied, to sue the government for noncompliance with a court order.
“Our thinking is that they’re going to delay this as much as possible,” said do Nascimento. “They’ve already said themselves that they will try to end the program again. Right now, I don’t think that they’re working on new protocols to resume first-time applications. They’re probably working on a new memo to rescind the entire program.”
Yesterday, Senate Democrats and independents sent a letter to Department of Homeland Security Acting Secretary Chad Wolf calling on the department to immediately comply with the court’s decision.
As of this writing, immigration lawyer Justin Sweeney told the Prospect that he filed two new DACA applications and one application for advance parole (which allows DACA recipients to leave the U.S. and return). They arrived at USCIS on Monday, according to postal tracking, but he has no indication yet if the applications have been accepted for processing. Typically within a month, he said, he would get a notice from USCIS if the application had been accepted and a receipt for the application fee of $495. If rejected, the application packet would be returned along with the fee. Prior to the administration’s ending the program, Sweeney said he had filed for DACA for more than 100 clients and had never been rejected—even in some of the more complicated cases.
The government is expected to issue another rule rescinding the program again, but such a rule has yet to appear, and in the meantime the government has not said that they are accepting new applications, a month after the ruling and four days after the court-ordered requirement.
“If [Trump] doesn’t rescind it again, he has to start accepting applications,” Sweeney said.
Since the Supreme Court’s ruling, the DACA page on the USCIS website has remained archived, and the agency has released just one public statement questioning the legitimacy of the Supreme Court’s decision. “Today’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program,” USCIS Deputy Director for Policy Joseph Edlow said in the statement. When the Prospect asked USCIS if they had begun accepting new applications, the agency refused to provide a full answer, instead parroting its earlier public statement: “The Department of Homeland Security and the Department of Justice are reviewing the court decision. USCIS has no further comment at this time other than Deputy Director for Policy Joseph Edlow’s statement.”
In contrast, when the administration ended DACA, USCIS updated their website within 24 hours, and when the Ninth Circuit issued its ruling requiring USCIS to continue accepting DACA renewals, the USCIS website was also updated within 24 hours. “There’s nothing yet, and we’re a month out,” said Sweeney.
Do Nascimento said that United We Dream is trying to pressure USCIS to comply. “We’re trying to bring awareness, but I think after the Supreme Court decision the mainstream media people thought, ‘Oh, this is settled,’” she said.
In the three years since the Trump administration ended the popular program, more than 55,000 young immigrants have aged into the program’s eligibility requirements. According to the Center for American Progress, at least 300,000 more Dreamers are currently eligible to apply for DACA.
Even when the administration’s policy changes are judged illegal, the effect makes immigrants’ lives harder.
Advocates are worried that the agency’s budget troubles will make it next to impossible for new applicants to receive DACA protections. “The USCIS is about to furlough their staff and they’re about to go bankrupt,” said do Nascimento. “They’re putting this on themselves and making it impossible for people to renew.”
“I think the furloughing is going to cause the applications to take even longer and longer to approve,” said Sweeney. “It might just be a waiting game until the election.”
Sweeney says that given DACA’s popularity, it’s unlikely that Trump will want to rescind the program again just three months before the election. Delaying the processing of applicants allows the administration to achieve its anti-immigrant goals without taking the political hit of rescinding a popular program.
“He’s been using the Dreamers for political leverage his whole presidency and I find it really hard to believe it’s not true right now,” Sweeney said. He added that the government is “probably just waiting to get sued in court.”
Do Nascimento said that even though the date for when USCIS must comply has passed, she is hesitant to recommend that new applicants file for DACA. She expressed worry that applicants would file and be rejected or hear nothing, but because they filed, USCIS would have their information. “The truth of the matter is we don’t know what they’re doing with your info and we know ICE has access to some information,” she said. USCIS does return the applicant’s packet of information, and the fee, but do Nascimento said she wants to make sure “that folks know the risk that they’re taking by sending in a new application.”
Sweeney says that he is not aware of USCIS keeping his clients’ information and it’s “long-standing USCIS policy” not to do so. He also pointed out that if USCIS does reject these applications after processing them, the rejected applicants would be able to join a class action lawsuit against USCIS for noncompliance. “If you don’t file them, then you can’t be in a class action suit,” he said.
Do Nascimento pointed out that this is also part of the administration’s fear campaign—even when the administration’s policy changes are judged illegal, the effect makes immigrants’ lives harder. Just announcing its “public charge” rule had a chilling effect on the number of immigrants using crucial public services. The recent guidance on international student visas, reversed after being settled this week out of court, will likely have a deterrent effect, intimidating international students into studying elsewhere.
This week, USCIS also released new guidance on issuing work permits, making it harder to get a work permit, do Nascimento says. The rules would affect not just DACA recipients, but other noncitizens who have to apply for work permits. “Work permits are usually par for the course if someone is granted legal presence or status, but this would make it discretionary and up to individual officers,” she explained.
“We truly believe that this administration has a white supremacist agenda to make the lives of immigrants who are already here harder and make it harder for people to come into this country, especially people of color and Black immigrants,” said do Nascimento.
