On Saturday, November 14, 2020, a federal district court judge in Brooklyn, NY, concluded that the Wolf memorandum issued July 28, 2020, whose provisions further restricted the availability of DACA, was issued without legal authority because Chad Wolf was not lawfully serving as the acting secretary of Homeland Security. The judge also certified a nationwide class in the case. The court appointed the Jerome N. Frank Legal Services Organization at Yale Law School, NILC, and Make the Road New York as attorneys for the class.
During a Nov. 18, 2020, case status conference, the plaintiffs in Batalla Vidal v. Wolf and the plaintiffs in a related case, State of New York v. Trump, shared their plan to ask the court for specific orders requiring the government to take action on DACA. During the status conference, the court was clear that the 2012 DACA memorandum should be the law that is “on the books.” The judge said this case impacts “the lives of many, many people who were buoyed by the Supreme Court’s decision in June and had been undermined by the conduct of the Department of Homeland Security since then.” He said that it is important to adhere to the Supreme Court’s decision issued in June, which would have allowed people to apply for DACA under the 2012 rules. The court expressed deep concern for members of the certified class and subclass who are eligible for DACA and deserve closure.
On Friday, December 4, 2020, the court issued an order vacating the Wolf memo and returning DACA to the terms that were in place before September 5, 2017. The government is now accepting first-time requests, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with the court’s memorandum and order of November 14, 2020. The government published a notice on December 7, 2020 stating that it is now accepting these applications. The court also extended to two years employment authorization documents that were issued for one year. The government mailed notice to all class members informing them of the extensions.
In addition, the court also required the government to produce a status report on the DACA program by January 4, 2021. The report included: (1) the number of first-time requests, renewal requests, and applications for advance parole received, adjudicated, approved, denied, and rejected from November 14 until December 31, 2020; and (2) the number of first-time requests, renewal requests, and applications for advance parole that were processed according to the terms of the Wolf memo. A summary of the data included in the report is available below.
During a status conference on Thursday, December 10, 2020, the court ordered the federal government to mail individualized notices by January 8, 2021 to (1) individuals who received a one-year EAD; (2) individuals whose first-time request for DACA was rejected under the Wolf memo; and (3) individuals whose applications for advance parole were rejected under the Wolf memo. The government filed a letter on January 7, 2021 notifying the court that it has mailed the individualized notices to all affected class members.
The court also ordered the government to issue new EADs to all DACA recipients who received one-year EADs as evidence that their current EADs are now valid for two years. The new EADs are to be issued no later than 30 days before the expiration date of the current EADs.