DACA update: legislative movement, appeals court ruling

There have been several developments related to the Deferred Action for Childhood Arrivals (DACA) program in recent days, including a House bill that passed out of committee and a second appeals court ruling against the Trump administration’s method of terminating the program.

Key developments:

• A House bill that would provide 10-year conditional green cards to Dreamers, who could then apply for lawful permanent resident status and eventually citizenship, passed out of the House Judiciary Committee late Wednesday. The American Dream Act of 2019, H.R. 2820, passed out of committee by a vote of 19-10 after more than eight hours of markup, and is expected to next advance to the House floor. A related Senate bill, S. 287, introduced by Lindsey Graham, R-S.C. and Dick Durbin, D-Ill., has five cosponsors but has not reached a vote in the Senate Judiciary Committee. The House Judiciary Committee also passed a companion bill, the American Promise Act, H.R. 2821, which would provide a path to permanent residency for individuals in the Temporary Protected Status and Deferred Enforced Departure programs.
• Last week, a second federal appeals court ruled against the government in a DACA lawsuit, concluding that the administration’s decision to terminate DACA was “arbitrary and capricious” and violated the Administrative Procedures Act. The ruling by the 4^th Circuit does not change the current status of the DACA program, but it notably reversed a lower court’s ruling, the only court to rule in favor of the government on this issue thus far. In November, the 9th Circuit blocked the administration from terminating DACA while litigation is pending. Two additional federal appeals courts, the 2^nd Circuit and the D.C. Circuit, are expected to rule shortly. If all appellate courts agree that the termination of DACA was unlawful, it is possible that the Supreme Court may be less inclined to take the case.
• Business leaders have voiced their support for the Dream Act and for bipartisan legislative measures to protect Dreamers. The Business Roundtable and the Coalition for the American Dream issued statements applauding the House Judiciary Committee’s passage of the Dream Act and urging lawmakers to pass legislation that would provide permanent relief to roughly 700,000 Dreamers who currently benefit from the program. The organizations represent CEOs from some of the biggest companies and largest trade associations in the U.S. Upwards of 72% of the top 25 Fortune 500 companies employ Dreamers.

BAL Analysis: The Dream Act shows promising signs of a legislative solution for Dreamers, but the bill is likely to face opposition in the Senate, in part because it does not contain new immigration enforcement provisions. The current status of DACA remains unchanged. The Department of Homeland Security continues to accept renewal applications from DACA recipients in accordance with the 9^th Circuit’s injunction, but it is not required to accept new DACA applications.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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