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President Biden Signals His Administration’s Clear Support for DACA

27 Jan

On January 20, 2021, President Biden issued the Presidential Memorandum entitled “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)”. This Memo directs the Secretary of Homeland Security, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”   The Memo reminds us that with DACA removal (deportation) was deferred for certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military, and that DACA recipients were given the ability to apply for work authorization to support themselves and their families and contribute to the U.S. economy. 
As of December 7, 2020, pursuant to a federal court order, the U.S. Citizenship & Immigration Services (USCIS) is accepting both first-time and renewal requests for DACA and is granting deferred action and employment authorization based on DACA in two-year increments. Moreover, the USCIS is also accepting applications for advance parole based on DACA. For more details, please refer to Foster’s previous post here. 
At this timeanother federal lawsuitTexas v. United Statesinvolves a challenge to the validity of DACA and remains pending in the U.S. District Court for the Southern District of Texas. Nine states, led by Texas, filed this lawsuit in 2018 arguing that the executive branch did not have the authority to institute the DACA program via memorandum. These states seek an order declaring the DACA program unlawful and setting aside the June 2012 Napolitano Memorandum that created the program under the Obama AdministrationThe defendants in the case are led by 22 DACA recipients who intervened after the Trump Administration refused to defend the programBoth parties have filed motions for summary judgement and are awaiting the court’s decision. The court could (1) dismiss the case because the plaintiff states cannot show any injury from DACA, (2) deny both parties’ motions and set the case for trial, or (3) decide upon the legality of DACA. 

Although President Biden’s Memo does not make any immediate changes to the DACA program, and it remains to be seen what the federal court will decide in Texas v. United States, the president’s Memo demonstrates his administration’s clear support for the DACA program and indicates that the Biden Administration will likely defend the DACA program in court and strengthen the program if it survives court challenge.  
Foster will continue to monitor developments in connection with the DACA program under the new administration and will make future updates available on our firm’s website at