A Good Week for Immigration Litigation Plaintiffs

Two cases this week showed the power of challenging agency decision-making in the federal courts.

On Tuesday, July 14, 2020, the government relented in response to Harvard and MIT’s suit challenging Immigration and Customs Enforcement’s abrupt rule change for students on F-1 visas. President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., 1:20-cv-11283-ADB (D. Mass, filed July 8, 2020).

During that day’s brief hearing, District Judge Allison Burroughs noted that the parties settled the combined temporary restraining order/preliminary injunction motions, with the government’s agreeing to rescind the July 6, 2020 Policy Directive and the July 7, 2020 FAQ, as well as their implementation. She concluded that the agreement had mooted the motion.

Because of that suit, the government has returned to its March 9, 2020 and March 13, 2020 policy, allowing F-1 students to participate in remote learning implemented as a result of the COVID-19 pandemic—either in the United States or abroad—while retaining their visa status.

And on Friday, July 17, 2020, District Judge Paul Grimm restored the Deferred Action for Childhood Arrivals policy to its pre-September 5, 2017 status. Casa de Maryland v. U.S. Dep’t of Homeland Sec., PWG-17-2942, slip op. at 1-3 (D. Md. July 17, 2020), ECF No. 97.

Relying on the Fourth Circuit’s judgment in that case (Casa De Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 705 (4th Cir. 2019)), and the Supreme Court’s decision in Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020), Judge Grimm ordered that the DACA policy’s rescission be vacated; and enjoined the government from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law.

Consequently, the government must again accept new DACA applications.

An update: On Friday, August 21, 2020, U.S. Citizenship and Immigration Services’ Deputy Director for Policy, Joseph Edlow, issued a memorandum describing the agency’s non-acquiescence policy. The memorandum is available at this link.

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