On July 28, 2020, the acting head of the U.S. Department of Homeland Security issued a memorandum detailing the agency’s new DACA policy following last month’s U.S. Supreme Court decision regarding the fate of DACA. In June, the Court found that DHS’s decision to end DACA was reviewable and was arbitrary and capricious, thus prevented DHS from ending the program. The agency has issued this memorandum while it is engaging in a “comprehensive review” of the DACA program, in other words, working on establishing a legal basis for ending DACA.
In the meantime, the DHS memorandum has announced that USCIS will reject any initial applications for DACA and deny any currently pending initial applications for DACA. Thus, individuals who did not previously hold DACA cannot apply under this new policy.
In addition, USCIS will only approve DACA renewals for a period of one year, as opposed to the two-year period it had previously granted applicants.
Although USCIS will resume the acceptance of applications for advance parole, the agency will only grant advance parole in exceptional circumstances. The agency had previously stopped granting applications for advance parole.
We expect that additional lawsuits will be filed to challenge DHS’s decision to reject initial DACA applications, as some suits have already been filed in federal court. Courts may interpret the Supreme Court’s DACA decision as preventing DHS from rejecting these applications and issue orders for DHS to change its policy soon. Challenges to the other aspects of the memorandum could also be brought, as they are arguably another attempt by DHS to curtail the DACA program in an arbitrary and capricious way.