Second Preliminary Injunction Against DACA Rescission

On February 13, 2018, Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York issued a nationwide preliminary injunction against the rescission of the Deferred Action for Childhood Arrivals (DACA) program [PDF version]. This marks the second injunction against the DACA rescission. Judge Garaufis granted the injunction after concluding that the plaintiffs are likely to succeed on the merits of their claims under the Administrative Procedures Act (APA). Specifically, he concluded that the Trump Administration did not opt to rescind DACA as an exercise of discretion or based on a reasoned policy judgment, but instead did so upon concluding that DACA was unconstitutional or unlawful based on reasons that Judge Garaufis did not consider to be persuasive or sound (note: he did not reach the question of DACA's underlying legality). We covered the legal rationale of Attorney General Jeff Sessions for the DACA rescission in a separate post [see article].

Although Judge Garaufis' reasons for granting his injunction were not identical to Judge William Alsup of the United States District Court for the Northern District of California on January 10, 2018, this injunction is identical in scope, requiring the Trump Administration to maintain DACA as it existed prior to September 5, 2017, but not requiring it to consider new applications by individuals who never received DACA benefits or to continue granting advance parole to DACA beneficiaries [see article].

Because the Trump Administration is already complying with the court order from the United States District Court for the Northern District of California which is identical in scope, the preliminary injunction coming from the Eastern District of New York will not change the current situation regarding DACA [PDF version]. As we noted in a separate post, the Trump Administration has asked the Supreme Court of the United States to agree to hear the DACA rescission case on appeal before final judgment is rendered by the district court [see blog]. The Supreme Court has not yet issued a decision, but the issues are likely to end up in the Supreme Court in the near future.

DACA beneficiaries and other individuals affected by the potential DACA rescission should consult with an experienced immigration attorney for case-specific guidance. For the time being, DACA beneficiaries should prepare for the possibility that DACA is eventually rescinded and not replaced with new laws.

Please see our up-to-date post on the DACA rescission to learn more [see article].