THE TORCH: CONTENTS By Haddy Gassama

July 25, 2022

On his first day in office, President Biden issued an executive order that rescinded the Muslim and African Ban, saying that the former administration’s policies were “contravening our values” and had left “a stain on our national conscience.” While he was right that the ban represented a dark chapter in this country’s history, his administration’s subsequent actions have not fully undone its harms.

I have worked with some of the thousands of individuals who were barred and are still separated from their families, awaiting relief and the chance to finally reunite. More than a year later, many of them continue to fight for their chance to immigrate to the U.S. through several lawsuits challenging the government’s procedures in implementing the ban. Recently, the Biden administration filed a brief doubling down on its decision to continue banning aspiring newcomers who were unable to enter due to the ban. The administration reasoned that the case is moot – an affront to thousands of people whose lives have been turned upside down by a discriminatory policy that should have never existed in the first place.

Individuals who won diversity visas between 2017 and 2020, often after making enormous sacrifices, are one of the groups still barred from entering the country. The Biden administration has argued that these diversity visa winners have no legal recourse and, frustratingly, their only hope is to reapply again to a program that carries once-in-a-lifetime odds of success.

The diversity visa program selects potential immigrants from countries that generally have low immigration numbers, and was established with bipartisan support by Congress to diversify immigration to the United States, offering individuals the opportunity to build a life here and contribute to our communities. An average of 13 million people from around the world apply to the diversity lottery each year. Only 55,000—less than half a percent of applicants—are granted a chance to apply for a visa, and even those fifty-five thousand aren’t guaranteed entry or residency, but only the mere chance to apply. Once selected, they often forgo other job offers and educational opportunities, and defer important life decisions such as marriage in order to go through the application process.

In line with other trends of anti-Black racism in the U.S. immigration system at large, immigrants from African countries are disproportionately impacted by the denial of diversity lottery visas. Historically, immigrants from Africa have relied heavily on the diversity visa program as a means to immigrate to the U.S., given that other types of visas or avenues of migration require them to have family members or strong close contacts in the United States in order to qualify. Statistics show that, historically, 39% of all diversity visa immigrants were from Africa, even with an application approval rate below 50 percent.

Omer Mohamed, a Sudanese electrical engineer, is one heartbreaking example of the impact the ban has had on diversity visa winners. When he won his visa in 2019, he thought it was his once-in-a-lifetime opportunity to immigrate to the U.S. and support his elderly parents and family in Khartoum. Omer’s mother sold what remained of her heirloom jewelry so that he could afford the $300 interview fee. Despite this, Mohamed’s visa was rejected solely because of the discriminatory Muslim and African Ban.

Ramin Raghifar of Iran is another example of a life in limbo. He won the diversity visa after 15 years of applying. Ramin had always dreamed of traveling to the U.S. to practice medicine and advance his research in dermatology and radiology. He was so committed to the prospect of contributing to research in the U.S. that he was even willing to pass up other job opportunities and delay marriage. His visa, too, was denied due to the ban.

For Omer, Ramin, and thousands of others, the only hope to complete their journey to America is through legal action. This is why they are closely following the multiple lawsuits that have been filed against the U.S. government for failure to repair the harms of the ban. While the courts have previously indicated that the U.S. can or must proceed with remedying the harm to diversity visa applicants, the Biden administration has, perplexingly, fought to uphold the Trump administration’s previous policies—indeed, the same policies that Mr. Biden denounced on day one of his presidency.

Despite the administration’s disappointing recent court filing, it still has the opportunity to bring its policy in line with the values President Biden conveyed when issuing his executive order to repeal the ban. The administration can do this by dropping its legal defense of discriminatory policies that continue to devastate families to this day, and by allowing those who patiently and diligently worked for their right to immigrate to complete their journeys.

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Haddy Gassama, Esq., is national director of policy and advocacy for the UndocuBlack Network, a member of the No Muslim Ban Ever coalition.

THE TORCH: CONTENTSBy Jess Hanson

June 29, 2022

With two back-to-back federal court hearings related to the Deferred Action for Childhood Arrivals (“DACA”) policy coming up on July 6 and 7, we can all use a refresher on what’s going on. We’ve got you covered.

Disclaimer: The content of this post does not constitute legal advice. For questions about your individual case, please consult a reputable immigration lawyer.

Two DACA Cases Are Active in the Courts

There are currently only two cases centered on the DACA policy that are actively being litigated in the courts.

First is Batalla Vidal v. Mayorkas, No. 16-cv-04756, which is before Judge Nicholas G. Garaufis in the federal District Court for the Eastern District of New York. Batalla Vidal (or “the New York case”) was the first lawsuit in the country in which DACA-holder plaintiffs challenged the Trump administration’s efforts to end DACA in 2017. The plaintiffs in Batalla Vidal are represented by NILC, Make the Road New York, and the Yale Law School’s Jerome N. Frank Legal Services Organization. The New York case has its next hearing in Brooklyn on July 7, 2022, at 2:30 pm ET.

Second is Texas v. United States, No. 18-cv-00068, which was brought before Judge Andrew S. Hanen in the federal District Court for the Southern District of Texas, and which is currently on appeal to the Fifth Circuit Court of Appeals. In Texas (or “the Texas case”), the state of Texas and several other states sued the U.S. government to challenge the legality of the 2012 DACA policy. The state of New Jersey and several individual DACA recipients intervened to defend the DACA policy alongside the U.S. government. The Fifth Circuit is hearing oral arguments in the Texas case on July 6, 2022, at 9:00 am CT in New Orleans.

A Timeline of the New York and Texas Cases

To understand what is currently happening in the New York and Texas cases, below is a timeline of the relevant events in each case:

• • June 18, 2020: The U.S. Supreme Court concludes that Trump’s 2017 attempt to end DACA was unlawful. The merits of DACA are not at issue before the Supreme Court. The Court only considers whether Trump’s attempt to end DACA was done lawfully.

• • July 28, 2020: The Trump administration issues the Wolf Memorandum, which would have required the Department of Homeland Security (“DHS”) to deny first-time DACA requests, cut renewal periods for DACA recipients in half, and limit the availability of advance parole.

• • August 28, 2020: The plaintiffs in Batalla Vidal amend their complaint to challenge the Wolf Memorandum and fully reinstate the DACA program.

• • November 14, 2020: The Batalla Vidal court in New York takes two significant actions: (1) holds that Mr. Wolf was not the Acting Secretary of DHS when he issued the Wolf Memorandum, and (2) certifies a nationwide class including all persons who are or will be eligible for DACA as set out in the original 2012 DACA Memorandum (approximately 1.1 million people).

• • December 4, 2020: The Batalla Vidal court in New York vacates the Wolf Memorandum, fully reinstates DACA under the terms of the 2012 Memorandum, and opens DACA to first-time applicants for the first time in three years.

• • After December 4, 2020: Tens of thousands of eligible individuals file their first-time requests for DACA under the terms of the 2012 DACA Memorandum. U.S. Citizenship and Immigration Services (“USCIS”) has a 4-month ramp-up period in processing and begins adjudicating new DACA requests at a rapid pace in May 2021.

• • July 16, 2021: The District Court for the Southern District of Texas issues an order that the 2012 DACA policy is unlawful. The Texas court orders the government to stop granting DACA until it remedies its illegalities but allows renewals to continue until the case is fully resolved.

• • After July 16, 2021: The U.S. government appeals the Texas order to the Fifth Circuit Court of Appeals. Meanwhile, 78,000 first-time DACA applications submitted after the New York court’s December 4, 2020, order are stalled. USCIS even cancels appointments for first-time applicants to take fingerprints that had already been scheduled. Renewals continue as normal, except for “Extended Renewals” (renewal applications filed where the applicant’s last DACA grant expired more than one year prior), which the government inexplicably treats as first-time requests, grants of which are barred by the Texas order.

• • Summer-Fall 2021: Advocates focus their efforts on Congress, where legislation providing a pathway to citizenship for DACA-eligible individuals gains momentum.

• • Winter 2021-Spring 2022: In light of congressional inaction, the Batalla Vidal plaintiffs decide to go back to court in New York.

• • Spring 2022: The parties’ briefing of the Texas appeal before the Fifth Circuit is completed. Oral argument is set for July 6, 2022, in New Orleans.

• • April 2022: The Batalla Vidal plaintiffs and class members attend a status conference in Brooklyn to ask the New York court to clarify that its December 2020 order provides relief for a small subset of the 1.1 million class members who are harmed (the 78,000 first-time applicants who are stuck in between the two orders, and all Extended Renewal Applicants who USCIS is treating as first-time DACA applicants), without conflicting with the Texas order.

• • June 2022: The Batalla Vidal plaintiffs complete briefing on their motion for modification. The New York court sets oral argument for July 7, 2022, in Brooklyn.

The Space Between the New York and Texas Orders

The New York order (Dec. 2020) fully reinstates the 2012 DACA Memorandum, whereas the Texas order (July 2021) prohibits the U.S. government from *granting* first-time DACA requests.

The plaintiffs in Batalla Vidal are arguing that there is a space between these two orders for the U.S. government to do more to fully implement the 2012 DACA Memorandum as required by the New York order, without running afoul of the Texas order. Specifically, the Batalla Vidal plaintiffs are arguing that:

1. The U.S. government can *process* first-time DACA requests up to, but not including, a final decision to grant or deny DACA and work authorization.

In between December 2020 and July 2021, class members who applied for first-time DACA who had previously had certain processing steps completed ahead of time (as part of unrelated past immigration applications) had their DACA requests adjudicated faster than class members who had never before had their fingerprints taken by USCIS.

For instance, Batalla Vidal plaintiff J.L.S. never before had her fingerprints taken by USCIS. She applied for first-time DACA days after the New York order in December 2020, but by the time the Texas order was issued seven months later in July 2021, she still had not had her DACA request adjudicated. Contrast that to plaintiff M.B.F., who had previously had her fingerprints taken as part of an unrelated immigration petition. She applied for first-time DACA in December 2020, but her DACA was adjudicated much faster and approved before July 2021.

The above real-life examples show that capturing fingerprints takes time and having it done in advance makes a meaningful difference. If DACA is re-opened for first-time applicants in the future, even briefly, the 78,000 class members who are stuck in limbo are entitled to have their DACA requests adjudicated. Having processing steps like fingerprint appointments completed in advance would speed this process along and mean that the 78,000 class members have a better chance of receiving a decision on their DACA requests if the program is re-opened in the future.

2. The U.S. government can adjudicate Extended Renewal Applications without conflicting with the Texas order.

As a matter of policy, USCIS is inexplicably treating Extended Renewal Applications—DACA renewal requests filed by people whose previous grant of DACA expired more than a year ago—as first-time DACA requests. The Texas order prohibits USCIS from granting first-time DACA, but it allows USCIS to adjudicate and grant renewal requests, regardless of when the request was submitted. USCIS can make the policy choice to start treating Extended Renewal Applications like the renewals they are and adjudicate them (even if USCIS decides to request additional evidence from those applicants), all without conflicting with the Texas order.

3. The U.S. government can provide interim protection for the 78,000 class members stuck in limbo between the New York and Texas orders.

Finally, the Batalla Vidal plaintiffs argue that the U.S. government can fashion interim relief for the 78,000 first-time DACA applicants who applied in between December 2020 and July 2021 and are stuck in limbo.

What’s at Stake in the Upcoming Hearings in the New York and Texas Cases?

As discussed above, the New York and Texas cases have back-to-back hearings on July 6 and 7, 2022. The scheduling of these hearings on consecutive days was a coincidence, and the courts will be hearing arguments on distinct issues:

Fifth Circuit Case (Texas v. United States): On July 6, 2022, in New Orleans, the Fifth Circuit Court of Appeals will hear oral arguments on whether Texas and the other plaintiff states have “standing” to challenge the 2012 DACA policy. The court will also hear arguments on whether the 2012 DACA policy is lawful.

This is the first time the merits of the 2012 DACA policy will be heard by a Circuit Court of Appeals. Whatever the outcome at the Fifth Circuit Court of Appeals, the decision is likely to be appealed to the U.S. Supreme Court. The timing of the Fifth Circuit decision is uncertain; in the past, the Fifth Circuit has issued opinions anywhere from a few weeks to several months after oral arguments are heard.

New York Case (Batalla Vidal): On July 7, 2022, in Brooklyn, New York, the District Court for the Eastern District of New York will hear oral arguments on the plaintiffs’ three requests for relief to fully implement the New York order without contradicting the Texas order. Specifically, and as explained in more detail above, the plaintiffs will present arguments that the federal government should be ordered to: (1) process the 78,000 stalled first-time DACA applications submitted between December 2020 and July 2021; (2) adjudicate Extended Renewal Applications as renewals; and (3) provide interim relief for the 78,000 first-time DACA applicants stuck in limbo.

The outcome of the plaintiffs’ requests in Batalla Vidal will not dictate the outcome in the Texas proceedings. Rather, the requests the plaintiffs are making in New York are aimed at providing relief to a narrow subset of the 1.1 million class members while the merits of DACA continue to be litigated in the Texas v. United States proceedings.

What’s Next?

Tune into the Fifth Circuit oral argument on July 6, 2022, at 9:00 am CT:

• • Live stream: West Courtroom Stream
  • In person: Attending Oral Arguments (uscourts.gov)

Attend the New York oral argument on July 7, 2022, at 2:30 pm ET:

• • In person: 225 Cadman Plaza East; Brooklyn, NY 11201; see Courthouse Security | Eastern District of New York | United States District Court (uscourts.gov)
  • [No live stream option]

Check the following websites for updates:

• • DACA – National Immigration Law Center (nilc.org)
  • FAQ | MALDEF
  • First Time DACA Application and Renewal Resources – United We Dream

Regardless of what happens in the courts, DACA is temporary. Tell Congress we need a permanent solution!

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