Latest news: February 2, 2021

 

DHS Statement on Equal Access to COVID-19 Vaccines and Vaccine Distribution Sites

The Department of Homeland Security (DHS) has released a statement (read the full text as a webpage) as follows:

DHS and its Federal government partners fully support equal access to the COVID-19 vaccines and vaccine distribution sites for undocumented immigrants. It is a moral and public health imperative to ensure that all individuals residing in the United States have access to the vaccine. DHS encourages all individuals, regardless of immigration status, to receive the COVID-19 vaccine once eligible under local distribution guidelines.

DHS carries out its mission, including all areas within its COVID-19 response, without discrimination on the basis of race, ethnicity, nationality, or other protected class, and in compliance with law and policy. Further, DHS supports the equitable and efficient distribution of the COVID-19 vaccine to all populations, including historically underserved communities.

To reach underserved and rural communities, the Federal Emergency Management Agency (FEMA), in collaboration with federal partners, will coordinate efforts to establish and support fixed facilities, pop-up or temporary vaccination sites, and mobile vaccination clinics. U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection will not conduct enforcement operations at or near vaccine distribution sites or clinics. Consistent with ICE’s long-standing sensitive locations policy, ICE does not and will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors' offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances.

DHS is committed to ensuring that every individual who needs a vaccine can get one, regardless of their immigration status.

New Presidential Administration Stance

On January 20, 2021 President Biden introduced an immigration reform bill in Congress entitled the U.S. Citizenship Act of 2021.  The key provisions for undocumented and DACA students are as follows:

Create a roadmap for a green card and citizenship for undocumented individualsand DACA recipients: The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. DACA students (dreamers}, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes. Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.

President Biden also reaffirmed his commitment to DACA and keeping the program intact in a memorandum to the Attorney General and Director of Homeland Security.  However, we are waiting for a federal court decision out of Texas regarding the legality of the program.  That court decision may end or curtail the program by allowing DACA to continue but ruling that the employment authorization document and advance parole permit would cease being issued because it exceeded the President’s authority.

For a more comprehensive history of the litigation and news up to this point, see the News archive section lower on this page. The most recent legal ruling is included in the December 5, 2020 update.

If you are currently a DACA recipient

Current DACA recipients can renew their DACA status and employment authorization document for a two-year period. We encourage all eligible DACA recipients to consult with an attorney.  Frank Martinez, IU Immigration Attorney, is also available to answer any questions, review applications you have put together and discuss your particular situation if you are an IU student.

For DACA renewals, USCIS strongly encourages you to submit your renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document. Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request.

If you are not currently a DACA recipient

Based on the recent court decision issued on December 4, 2020, you are eligible to apply for DACA. You should consult with an immigration attorney to determine your eligibility and the documentation you must provide for this benefit. Frank Martinez, Immigration Attorney, is also available to answer any questions, review applications you have put together and discuss your particular situation if you are an IU student.

The government is accepting and processing applications for Advance Parole. We strongly urge you to not attempt travel outside the United States and to consult with an immigration attorney before contemplating this action.

News archive

U.S. District Court Judge Nicolas Garaufis on Friday ordered the Trump administration to fully restore the Deferred Action for Childhood Arrivals (DACA) program that existed prior to the recission of the program on September 5, 2017.  The ruling restores the Obama-era program and also mandates that the Department of Homeland Security (DHS) post a public notice by Monday saying it is accepting new applicants, renewal requests and advance parole requests (travel permit), based on the terms of the DACA program that existed prior to its recission. Additionally, the notice must also make clear that all 1-year DACA grants and employment authorization documents issued after the unlawful Wolf memo must be extended to 2-years.

The judge’s ruling centered around a memo acting Homeland Security secretary Chad Wolf issued in July that curtailed DACA recipients’ work permits to a year and banned new applicants. The court ruled last month that Wolf had ascended to the post in violation of the Homeland Security Act of 2002, and said Friday that the memo was void. The order mandates the White House administer DACA under the guidelines that were in place when the program was first created during the Obama administration.

On November 14, 2020, a federal court rejected the Trump administration’s restrictions on the Deferred Action for Childhood Arrivals (DACA) program in the Batalla Vidal v. Wolf lawsuit. The court found that the July memo issued by Chad Wolf, who claimed to be the Acting Secretary of Homeland Security, was invalid because he was unlawfully appointed. As a result of the decision, lawyers working on the case said the Department of Homeland Security should return the DACA program to its initial form — re-opening DACA to first-time applicants, restoring work authorization and renewals to two years and making travel on advance parole available to DACA recipients without restrictions.

The court also granted plaintiffs’ request to be certified as the representatives of a nationwide class of approximately one million DACA-eligible individuals across the country. The court directed the parties to contact the court “immediately” to schedule a conference regarding next steps and any relief stemming from the legal opinion such as a preliminary injunction.

We will have to wait and see what relief the Court will grant the nationwide class of Plaintiffs in a future court order.  It is likely that the program will be fully restored as it was prior to the administration’s decision to end the program based on this current ruling.

For more information on the Court cases and previous rulings, see September 10, 2020 and August 28, 2020 in the News Archive

U.S. District Court Judge Nicolas Garaufis on Friday ordered the Trump administration to fully restore the Deferred Action for Childhood Arrivals (DACA) program that existed prior to the recission of the program on September 5, 2017.  The ruling restores the Obama-era program and also mandates that the Department of Homeland Security (DHS) post a public notice by Monday saying it is accepting new applicants, renewal requests and advance parole requests (travel permit), based on the terms of the DACA program that existed prior to its recission. Additionally, the notice must also make clear that all 1-year DACA grants and employment authorization documents issued after the unlawful Wolf memo must be extended to 2-years.

 

The judge’s ruling centered around a memo acting Homeland Security secretary Chad Wolf issued in July that curtailed DACA recipients’ work permits to a year and banned new applicants. The court ruled last month that Wolf had ascended to the post in violation of the Homeland Security Act of 2002, and said Friday that the memo was void. The order mandates the White House administer DACA under the guidelines that were in place when the program was first created during the Obama administration.

Another lawsuit has been filed against officials at the Department of Homeland Security. Recently, the Mexican American Legal Defense and Educational Fund (MALDEF) filed a lawsuit on behalf of several nonprofit organizations in the U.S. District Court for the District of Columbia seeking to enjoin and vacate the July 28, 2020, memo issued by Acting DHS Secretary Chad Wolf imposing changes to the Deferred Action for Childhood Arrivals (DACA) program. The plaintiffs assert that the memo and USCIS policy directives implementing it are void because they were issued by Defendant Wolf while he was purporting to serve as Acting DHS Secretary in violation of the Homeland Security Act (HSA) and the Federal Vacancies Reform Act (FVRA), and because they violate the Administrative Procedure Act (APA). Alternatively, the plaintiffs argue that even if Wolf had statutory authority to assume the position of Acting Secretary, his purported accession to office violated the Appointments Clause of the U.S. Constitution. (Santa Fe Dreamers Project, et al., v. Wolf, et al., 9/3/20)

Following the Department of Homeland Security’s decision to limit renewals to one year and bar new applicants from the Deferred Action for Childhood Arrivals (DACA) program, sixteen states are pushing back with an amended lawsuit aimed at blocking the new rules.  The attorneys general from 16 states and the District of Columbia  filed an amended complaint Friday challenging the administration’s actions, saying that terminating DACA will harm residents, state-run schools and damage their economies. Plaintiffs in the case also take issue with the appointment of [acting Homeland Security Secretary Chad] Wolf, who they argue was ‘improperly designated as Acting DHS Secretary and thus lacked the authority to issue the Wolf Memorandum.’” 


On July 28, 2020, Acting DHS Secretary Chad Wolf issued a memo rescinding prior memos that purported to terminate the DACA program and stating that he will reconsider the program’s future in light of the Supreme Court’s decision in DHS v. Regents of the University of California.  On August 21, 2020, USCIS issued guidance implementing the Wolf memo. This update provides explains the impact of the Wolf memo and USCIS guidance.

DACA FAQ for New Guidance

DACA Preguntas Frecuentes Español

Presidents' Alliance Analysis of July 2020 Memo

Wolf Memo Issued July 28, 2020

On July 28, 2020, Acting DHS Secretary Chad Wolf issued a memo rescinding two prior DHS memos in light of the Supreme Court decision.  In his July 2020 memo, Wolf stated that he plans to reconsider the DACA program’s future and, in the interim, instructed USCIS to reject all pending and future initial requests for DACA, reject all pending and future applications for advance parole absent exceptional circumstances, and limit the period of DACA renewals to one year. Wolf justified these interim actions by claiming that the DACA program “presents serious policy concerns that may warrant its full rescission,” and stating that he is “making certain immediate changes to the DACA policy to mitigate [his] enforcement policy concerns while [he] conduct[s] a full and careful consideration of a full rescission.” Wolf lists his “enforcement policy concerns,” which include Congress’s failure to act, use of discretion in the DACA program, and sending “mixed messages” on enforcement of immigration laws.
For a further summary, see July 28, 2020 news archive

USCIS Guidance Issued August 21, 2020

On August 21, 2020, USCIS issued a memo providing additional guidance necessary to implement Wolf’s July 2020 memo. Together, these memos outline the following policies: 

  • DACA Grants Will Be Limited to One Year; Previous Two-Year Grants Remain Valid:
    All requests for DACA and associated employment authorization granted after July 28, 2020 will be for a validity period of one year. Fees will remain the same, though the guidance states USCIS is reviewing the feasibility of reducing the fee. However, previous two-year grants of DACA will remain valid. Additionally, two-year DACA recipients who apply for a replacement EAD due to loss, theft, or the mutilation of their prior EAD will receive a replacement EAD with the same expiration date based on the original two-year validity period. 
  • New, Initial DACA Applications Will Be Rejected:
    USCIS will reject and return the fees for any initial DACA applications submitted by people who have never received a grant of DACA.
  • Initial Applications Filed by People Whose DACA Expired Over One Year Ago Will Be Accepted:
    USCIS will accept initial applications filed by people whose DACA expired more than a year prior. While the Wolf memo said that all initial DACA requests would be rejected, the USCIS guidance specifically stated that, “given the Acting Secretary's desire to maintain the status quo of the past few years, USCIS will continue to accept and adjudicate such requests notwithstanding any language in the Wolf Memorandum about rejecting ‘all’ requests for initial DACA.”
  • Renewal DACA Applications Will Be Accepted:
    USCIS will continue to adjudicate DACA renewal applications, including applications filed by people whose DACA expired less than a year prior to filing for renewal.
  • DACA Renewal Applications Should Not Be Submitted Too Early:
    The USCIS guidance stated that the agency will begin rejecting DACA renewal requests received more than 150 days prior to the expiration of the recipient's current DACA validity period. USCIS previously encouraged people to apply for renewal between 120 and 150 days prior to their DACA expiration but would generally accept and hold applications filed more than 150 days in advance.
  • Advance Parole Based on DACA Will Only Be Granted in Exceptional Circumstances:
    The USCIS guidance states that advance parole applications based on DACA will generally be rejected, unless there are exceptional circumstances. The guidance provides several examples of travel that could qualify as exceptional circumstances, including:
    • Travel to support the national security interests of the United States including U.S. military interests
    • Travel in furtherance of U.S. federal law enforcement interests
    • Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States
    • Travel needed to support the immediate safety, well-being, or care of an immediate relative, particularly minor children of the alien.
  • Pending Advance Parole Applications Will Be Rejected; Applicants Can Refile Under New Guidance:
    USCIS said it will reject and return the fees for all Form I-131 applications that have been held since July 24, 2020, stating that it would be more efficient and fair for applicants to refile their applications under the new guidance because applicants did not have prior knowledge of the new guidance. Any previously approved advance parole documents issued to DACA recipients remain valid for the specified validity period.
  • USCIS Will Continue Following Information-Sharing Policy:
    USCIS will continue to operate under the DACA information sharing policy outlined in the DACA FAQs.  See FAQ question 19 and 20 for further details. Those engaging in criminal activity, submitting a fraudulent claim for DACA or pose a national security threat will be referred to ICE for further investigation.

On July 28, 2020, the U.S. Department of Homeland Security (DHS) issued a memorandum with a press release and letter from the U.S. Department of Justice that enacts significant changes to Deferred Action for Childhood Arrivals (DACA), including reducing grants to one-year for DACA recipients renewing their grant of DACA (was two years); rejecting initial requests for DACA; and rejecting any request for an advance parole document (travel permit) absent exceptional circumstances. The memorandum also stated that the agency will review the future of DACA including whether to fully rescind the program, which will likely lead to the rescission of DACA.

The decision by the DHS is contrary to the June 18 Supreme Court decision and will be subject to further litigation.  Those that have not applied for DACA previously should consider doing so at this time even though your application will be rejected because this would allow you to join a class action lawsuit challenging this action.  You should consult with an immigration attorney before making this decision and to ensure your eligibility for the program.

A federal judge has ruled that USCIS must accept applications from first-time applicants applying for DACA.  Thus, first-time applicants for DACA should go ahead and apply.  Please consult with an immigration attorney to determine your eligibility and the documentation you must provide.  A list of attorneys can be found in the Hiring an Attorney tab who have indicated that they would provide their service at no charge or at a reduced cost.

While a more permanent congressional solution is still be needed in the future, IU is pleased that on June 18 the Supreme Court ruled that the Department of Homeland Security’s decision to rescind DACA was arbitrary and capricious and thus remanded the decision back to DHS to reconsider its decision to end DACA.

For a summary and analysis of the June 18 ruling, read June 25, 2020 News Archive.

Read IU's Statement on the June 18 Ruling

On June 18, 2020, in a 5-4 decision, the Supreme Court ruled that the Department of Homeland Security’s decision to rescind DACA was arbitrary and capricious and remanded the decision back to DHS to reconsider its decision to end DACA.

Therefore, for the time being, DACA cannot be ended and will continue. While a more permanent congressional solution will still be needed in the future, this is a great victory for IU’s DACA students and staff and Dreamers everywhere!

Read IU's statement

Read the official court opinion in full (links to PDF)


Summary and analysis of the court opinion

In a 5-4 opinion authored by Chief Justice John Roberts the Court held that the Acting Secretary of Homeland Security violated the APA and the rescission of DACA must be vacated. Under the APA, Roberts stressed, courts should not substitute their own judgment for that of the agency. Instead, he explained, their job is to determine whether an agency made its decision “based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Here, the memorandum that Acting DHS Secretary Elaine Duke wrote to justify the decision to end DACA concluded that the program was illegal and should be terminated because it made DACA recipients eligible for benefits such as Social Security, Medicare and the ability to work legally in the United States.

However, Roberts continued, the memorandum did not consider the policy that Roberts characterized as being “at the heart of DACA”: the protection from deportation that the program provides. Even if the benefits provided by DACA were illegal, Roberts observed, Duke could have still retained the protection from deportation, but instead she simply concluded, without any explanation, that it had to be terminated as well. That omission alone renders Acting Secretary Duke’s decision as arbitrary and capricious. But that is not the only defect. Duke also failed to address whether there was a legitimate reliance on DACA. Roberts added, Duke also did not address whether DACA recipients had counted on the existence of the program in arranging their lives; if she had, he suggested, she “might have considered more accommodating termination dates” for DACA recipients who were in the middle of academic programs, military service or medical treatment.

The Court rejected the DACA recipients’ claim that the Trump administration’s decision to end DACA violated the Constitution because it was motivated by an intent to discriminate. None of the factors that the challengers cite to support this claim such as the fact that DACA recipients are overwhelmingly Latino, the history of the decision to end the program and statements by Trump (both before and after his 2016 election) indicating that he wanted to end the program can establish such a claim, either alone or taken together.

In closing, Roberts reiterated that the court was not deciding “whether DACA or its rescission are sound policies.” Instead, he stressed, the court addressed “only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action” which, in the majority’s view, it did not. The solution, Roberts continued, was for the court to send the issue back to the Department of Homeland Security for it to consider the decision anew.

Written By: Frank Martinez, Associate General Counsel, Indiana University


Town Hall

On June 25, 2020 IU hosted a town hall on the ruling and its impact on current students.  You can view the recording below.

View a recording of the Town Hall

As of March 18, the U.S. Citizen and Immigration Services (USCIS) announced that it is closing its offices to routine in-person services until at least May 3 in response to the COVID-19 pandemic. This suspension in services includes biometrics appointments at the Application Support Centers.

In response to this, USCIS has made changes to the DACA renewal request process while their offices remain closed for in-person services.

Learn more about these changes

Access the full oral argument presented before the Supreme Court by listening to the audio recording or by downloading the transcript.

Listen to the audio (this will prompt a download)

Read the transcript

IU Signs Amicus Brief in Support of Deferred Action for Childhood Arrivals Recipients as DACA Heads to the Supreme Court

Indiana University President Michael A. McRobbie has issued the following statement on the filing of an amicus brief in support of Deferred Action for Childhood Arrivals and the consolidated cases in front of the Supreme Court, urging the Court to stand in support of DACA recipients:

“On Oct. 4, Indiana University joined 165 colleges and universities from across the country in signing an amicus brief supporting the roughly 700,000 young immigrants who came to the United States as children and who are protected from deportation by the Deferred Action for Childhood Arrivals program. This “friend of the court” brief was coordinated by the Presidents’ Alliance on Higher Education and Immigration.

Read full statement

The U.S. Department of Homeland Security recently changed its policy regarding expedited removal of certain individuals who did not enter the U.S. legally and have lived in the U.S. for less than two years. This may effect DACA students if they are erroneously detained and do not have proof of two years or more of continuous residence in the U.S. which could lead to their removal.

We strongly encourage DACA students to carry their DACA approval notices and evidence that they have been in the U.S. longer than two years with them at all times.

If you are detained and interviewed, you will have little or no opportunity to consult with family members or gather evidence that might prevent deportation. Those individuals erroneously subjected to expedited removal proceedings will face decisions made by the Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers, which are non-reviewable.

Again, Indiana University values your talents and contributions the IU community, and will continue to monitor DACA related policy changes.

The U.S. Supreme Court consolidated several DACA-related cases and scheduled oral arguments for November 12, 2019. The court will first decide if the decision to end DACA is reviewable by the courts. If so, the court will decide if the decision was lawful. We expect a decision in June 2020.

In the meantime, we continue to recommend that students renew their DACA status in a timely manner, preferably before October 2019.

The Supreme Court took no action on January 22, 2019 on the government’s request to review the DACA decisions that have been previously issued. The court’s inaction almost certainly means it will not hear the administration’s challenge in its current term, which ends in June.

The justices’ next private conference to consider petitions seeking review is scheduled for February 15, 2019. Even were they to agree to hear the case then, it would not be argued until after the next term starts in October and a decision sometime in early 2020 depending on when the case is heard.

On November 8, the 9th U.S. Circuit Court of Appeals ruled that the U.S. government has to continue the DACA program.

However, the administration is expected to appeal the ruling to the Supreme Court, which will likely release a decision in spring or summer next year.

U.S. District Court Judge John D. Bates ruled that the government had to fully reinstate the DACA program. However, shortly after, Judge Bates stayed (put on hold) the part of his decision that required the government to accept new DACA applications or accept advance parole applications. This means if you are eligible to renew, you can submit your renewal application, but we strongly recommend you do not attempt travel outside of the U.S. If you have never applied for DACA, you are ineligible to apply.

In an August 31, 2018 opinion, U.S. District Court Judge Hanen declined to issue an injunction that would have halted the processing of DACA renewals. This means that there are no new changes at this time and people can still submit DACA renewals.

On April 24, 2018, a federal district court judge ruled that the government would need to continue the DACA program as it was before.

However, the ruling does not go into effect immediately and it is not final. The government has 90 days to provide better reasoning for its decision to rescind DACA.

So for now, the government still has to process DACA renewal applications, but will not accept new applications or applications for Advance Parole (to travel outside the country).

On March 5, a federal district court judge ruled that the government cannot use information provided through the DACA program for enforcement (removal) purposes, unless the government requests permission from the court on a case-by-case basis if there is a national security, public safety or public interest issue. However, a federal judge would determine this, if it should occur.

On January 9, 2018, a federal district court judge ruled that the U.S. government has to provisionally continue the DACA program. A second court agreed with this ruling on February 13, 2018. This impacts only current DACA recipients. If you are not a current DACA recipient, you are ineligible to apply for relief.

These rulings are not permanent. This is an ongoing court case and the rulings only provides temporary relief while the legal process continues.

On December 14, IU President McRobbie joined with other Big 10 university leaders and called on Congress to enact a permanent legislative solution for DACA recipients.

Read the Big 10 Letter

On Sep.5, 2017, the Trump administration announced that it was terminating the Deferred Action for Childhood Arrivals (DACA) program, which was created during President Obama’s administration.

IU released a statement after the initial recinsion of DACA in support of all IU students.

We also want to assure all DACA students that we remain fully committed to ensuring a welcoming, safe and civil community for all IU students.President Michael A. McRobbie

Read the statement

IU applauds Supreme Court ruling on DACA program

On June 18, 2020, the Supreme Court blocked the unlawful termination of the DACA program.  IU celebrates this decision and released a statement.

Know your rights

All individuals in the United States have basic rights, regardless of immigration status, country of origin, or citizenship.

Review your rights

en Español
IU's response to executive action