Practice Advisory: Motions to Reopen for DACA Recipients With Removal Orders

Last Updated

October 14, 2020

On June 18, 2020, the U.S. Supreme Court issued a decision in Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) holding that the Trump administration’s effort to end DACA had not complied with the requirements of the Administrative Procedures Act. As a result, the Supreme Court upheld a lower court ruling issuing an injunction against the DACA rescission and remanding the case for further proceedings. While this reprieve from terminating DACA was very welcome news, the Trump administration has indicated that it does not plan to restore DACA protections to its pre-September 5, 2017, status. On June 30, 2020, Attorney General William Barr withdrew a letter by his predecessor, former Attorney General Jefferson Beauregard Sessions III, that raised doubts about the legality of DACA and the 2014 Obama-era Justice Department legal opinion that concluded the program was a lawful exercise of executive authority. The Department of Homeland Security (DHS) then issued a memorandum on July 28, 2020, making immediate changes to the administration of the DACA program while it considers the Supreme Court’s ruling. Meanwhile, the legal challenges to restore DACA protections continue, and the results of the litigation and the 2020 presidential election results will determine what will happen to DACA recipients.

This practice advisory discusses potential legal options available to DACA recipients with prior removal orders. Section II provides background about the DACA program and particular considerations for DACA recipients with removal orders. Section III gives an overview of common types of removal orders that DACA recipients may have. Section IV provides strategies for remedying the removal order, with practice tips tailored to the DACA context. Section V discusses practical considerations in filing motions to reopen.