On Tuesday night, a federal judge partially revived the Deferred Action for Childhood Arrivals program—which shields immigrants who came to the United States as minors from deportation and allows them to work legally in the country—arguing that the “plaintiffs have shown a likelihood of success on their claim that the rescission was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.”
The court order requires the Trump administration to resume accepting applications from DACA enrollees who want to renew their protected status, but it doesn’t require the administration to take new applications. The Department of Homeland Security, however, has not yet provided updated guidance on the renewal process, leaving recipients in limbo until then.
“It’s really a matter of holding until we get that additional guidance—people should not be submitting applications right now,” said Marielena Hincapié, the executive director of the immigrant-rights group the National Immigration Law Center.
The Trump administration stopped accepting renewal applications on October 5. The month before, Trump had announced that he was terminating DACA with a six-month delay, giving Congress a brief window to negotiate a permanent legislative solution.
Since then, legislators have been slowly working on a deal that would grant legal status to the nearly 700,000 DACA recipients. On Tuesday, the president met with a bipartisan group of lawmakers to discuss the program, though the session ended with more questions than answers about enrollees’ future.
With the March deadline looming, immigration advocates have been pressuring Congress to come to an agreement. According to estimates from the liberal Center for American Progress, 122 DACA recipients lose protections daily. Though the new court order means they can apply for a two-year renewal, that’s little comfort to some.
“I think it’s frustrating because we can’t use this injunction to plan out our lives,” said Bruna Bouhid, a DACA recipient and communications manager for United We Dream, the largest immigrant-youth organization in the country. “We can’t rely on injunctions. We can’t rely on rulings. We need something that’s a law—we need legislation.”
Advocates are urging lawmakers to pass the Dream Act, a measure first introduced in 2001 that would grant legal status to immigrants, like DACA enrollees, who were brought to the country illegally as children. Democrats want to add the legislation to a longer-term spending bill that needs to be passed on January 19 to avert a government shutdown. On Wednesday, Senate Minority Leader Chuck Schumer said on Twitter: “The only way to guarantee peace of mind & legal status for the #Dreamers is to pass DACA protections into law. A resolution to the #DACA issue must be part of a global deal on the budget.” Some advocates think the recent injunction could underscore the urgency of finding a legislative fix.
“The negotiations need to move even quicker to make sure that we don’t prolong this into a long legal battle in the courts,” said Juan Escalante, a DACA recipient and communications manager at the immigrant-rights group America’s Voice. Instead, the matter should be handled through “our legislative process to make sure we get the best outcome possible.”
Maria Praeli, a DACA enrollee who works as an immigration-policy associate at FWD.us, a pro-immigration group, concurred. “I think [the judge’s] order is a powerful indication of the need to protect Dreamers,” she told me. “It doesn’t change the urgency.”
White House Press Secretary Sarah Huckabee Sanders responded to the injunction on Wednesday, saying the administration “find[s] this decision to be outrageous, especially in light of the president’s successful bipartisan meeting with House and Senate members at the White House on the same day.” She added: “An issue of this magnitude must go through the normal legislative process. President Trump is committed to the rule of law, and will work with members of both parties to reach a permanent solution that corrects the unconstitutional actions taken by the last administration.”
In his ruling, U.S. District Court Judge William Alsup cited Trump’s tweets on DACA as evidence that partially reviving the program was in the public interest. Days after terminating it, Trump tweeted: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!.....” In response, Alsup wrote, “We seem to be in the unusual position wherein the ultimate authority over the agency, the chief executive, publicly favors the very program the agency has ended.”
Alsup also argued that ending the program would cause irreparable harm to its recipients. “Plaintiffs have clearly demonstrated that they are likely to suffer serious irreparable harm absent an injunction,” he wrote. “Before DACA, individual plaintiffs, brought to America as children, faced a tough set of life and career choices turning on the comparative probabilities of being deported versus remaining here. DACA gave them a more tolerable set of choices, including joining the mainstream workforce.”
The Justice Department will likely appeal the order. “Today’s order doesn’t change the Department of Justice’s position on the facts: DACA was implemented unilaterally after Congress declined to extend these benefits to this same group of illegal aliens,” said spokesman Devin O’Malley in a statement. “As such, it was an unlawful circumvention of Congress, and was susceptible to the same legal challenges that effectively ended [the Deferred Action for Parents of Americans and Lawful Permanent Residents initiative]. The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner.”
Still, without a clear sense of how the administration is going to respond to the order, recipients are right back where they started—urging Congress to pass legislation on DACA before thousands more are left susceptible to deportation.