On Monday, February 26, 2018, the US Supreme Court declined to consider the government's request to review a preliminary injunction issued last month by a federal court in California. On January 9, 2018, Judge William Alsup of the US District Court for the Northern District of California issued a preliminary injunction temporarily reinstating the Deferred Action for Childhood Arrivals (DACA) program. Judge Alsup's temporary order in Regents of the University of California, et al. v. Department of Homeland Security, et al. requires US Citizenship and Immigration Services (USCIS) to accept DACA renewal applications. On January 13, 2018, USCIS announced its process for accepting renewal applications. In a petition filed by the Justice Department on January 18, 2018, the government asked the Supreme Court to take the unusual step of bypassing the US Court of Appeals for the Ninth Circuit and reviewing Judge Alsup's injunction directly. The Supreme Court declined, thus leaving the lower court's order in place.

Under the District Court's temporary injunction, the DACA program will continue to be operated under the terms that were in place before it was rescinded on September 5, 2017, except that USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA and the agency will not accept or approve advance parole requests from DACA recipients (also known as "DREAMers"). Those DACA beneficiaries whose deferred action expired on or after September 5, 2016, may file their DACA request as a renewal. Those DACA recipients whose deferred action expired before September 5, 2016, or whose DACA status was terminated at any time, must follow the instructions for filing a new, initial request.

Judge Alsup's ruling is by its nature temporary, operative only until the district court issues a final ruling on the merits of the lawsuit or the injunction is overturned by the court of appeals. In its Monday decision, the Supreme Court said that it assumes the court of appeals will act expeditiously to decide the case; however, the litigation is likely to continue for months beyond the March 5, 2018, rescission date imposed by the Trump administration. In the meantime, DACA recipients will continue to be able to renew their DACA benefits.


As the litigation to preserve DACA continues in the courts, Congressional efforts to help the DREAMers, a goal supported by more than 80 percent of the electorate, have stalled in the Senate, with several bills having failed to garner the 60 votes needed to pass. A bill introduced in the House by Congressman Bob Goodlatte (R-VA), Chair of the Judiciary Committee, would create only a temporary solution for DREAMers and is opposed by Democrats. Moreover, Speaker Ryan has made clear that he will not move a bill to the floor that does not have the support of the President. The President is now insisting that he will not support any bill that does not contain: substantial funding for a Southern Border fence; elimination of the diversity visa lottery program; and significant changes to family-based migration, in addition to relief for DREAMers. As we approach the mid-term election season and positions begin to harden, the opportunity for getting to "yes" seems to be slipping away with each passing day.


Earlier in February 2018, Judge Nicholas G. Garaufis of the US District Court for the Eastern District of New York became the second District Court Judge to issue a nationwide preliminary injunction requiring USCIS to continue to accept applications to renew DACA benefits. Also, on Monday, February 26, 2018, the US District Court for the Central District of California found that USCIS had improperly terminated DACA benefits for recipients who had been arrested for, but not convicted of, criminal offenses or convicted of minor misdemeanors and has ordered USCIS to restore their benefits.

Originally published March 1, 2018

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.