Tag Archive for: Reliance Interests

Cyrus Mehta

Deferred Action for Special Immigrant Juveniles Survives Trump’s Attempts to Eliminate It

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By Cyrus D. Mehta and Kaitlyn Box*

On June 6, 2025, USCIS issued a policy alert stating that it would eliminate the automatic consideration of deferred action for Special Immigrant Juveniles (SIJs) who are not yet able to apply for adjustment of status due to visa unavailability. SIJ is a classification that provides a pathway to lawful permanent residence for minors who have been abused, abandoned, or neglected by a parent, and requires a finding by a juvenile court judge that the child cannot be reunified with his or her parent(s). This policy alert represented a marked departure from previous USCIS policy, pursuant to which USCIS automatically conducted deferred action determinations for juveniles with SIJ classification who could not yet adjust status because of immigrant visa number unavailability. If USCIS determined that a noncitizen with SIJ classification warranted a favorable exercise of discretion, deferred action was granted for a period of four years. Noncitizens with SIJ classification who had been granted deferred action were also eligible to apply for work authorization for this period.

Deferred action was necessary as a stop gap -solution due to the retrogression in the employment-based fourth preference category, which prevented SIJ applicants from filing I-485 applications. Without the benefit of deferred action, SIJ applicants are subject to removal from the US even though they have approved SIJ petitions unless the priority date becomes current. Deferred action allows the executive branch to provide ameliorative relief when there are gaps that would otherwise render the noncitizen vulnerable to removal. Congress laid out a clear path to lawful permanent residency for SIJS beneficiaries, but visa backlogs cause years-long delays before they can apply for their green cards.

Pursuant to the June 6, 2025 policy under the Trump administration, “USCIS will no longer consider granting deferred action on a case-by case basis to aliens classified as SIJs who are ineligible to apply for adjustment of status solely due to unavailable immigrant visas”, though individuals who have already been granted deferred action and employment authorization based on a SIJ classification will generally retain it. As a justification for this policy change, USCIS stated that:

“While Congress likely did not envision that SIJ petitioners would have to wait years before a visa became available, Congress also did not expressly permit deferred action and related employment authorization for this population. Neither an alien having an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without an immediately available immigrant visa available nor a juvenile court determination relating to the best interest of the SIJ are sufficiently compelling reasons, supported by any existing statute or regulation, to continue to provide a deferred action process for this immigrant category.”

This policy change was quickly challenged by a group of youth and legal services organizations in the U.S. District Court for the Eastern District of New York in A.C.R. et al. v. Noem et al., No.1:25-cv-3962. In their complaint, these organizations argued that USCIS’ abrupt recission of deferred action for noncitizens with SIJ classification was arbitrary and capricious in violation of the Administrative Procedure Act (APA) because USCIS failed to assert a reasonable explanation for its reversal of the prior policy, causing irreparable harm to juveniles with SIJ classification who are now at risk for deportation.

On November 19, 2025, the court granted a stay of the recission of SIJ deferred action. The court found that the plaintiffs are likely to succeed on the merits of their claim that the policy reversal was unlawful for several reasons, including because the government did not consider reliance interests or alternatives to rescinding the policy. The court also ruled that, absent the stay, the plaintiffs were likely to face irreparable harm because of the heightened risk of removal they would face without the protection of deferred action.  The court deferred a ruling on class certification and chose not to grant relief in the form of a preliminary injunction.  The court followed the logic advanced by the Supreme Court in Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), a case involving a challenge to DHS’ 2017 termination of the Deferred Action for Childhood Arrivals (DACA) program. In Regents, the Court criticized the first Trump administration for not factoring in reliance interests when terminating the DACA program. In reliance on the DACA program, DACA recipients had enrolled in educational programs, started careers and businesses, purchased homes, and married and had children in the United States. In the majority opinion, Chief Justice John Roberts noted consequences of the termination would also “radiate outward” to impact DACA recipients’ families, including their U.S. citizen children, and to their educational institutions and employers.

 Citing Regents, the court in A-C-R-, found that “USCIS failed to consider reliance interests and reasonably obvious alternatives here, likely rendering its decision to rescind SIJS-DA arbitrary and capricious”. USCIS had advanced two justifications for not taking reliance interests into consideration, first that “the requirement to consider reliance interests does not apply when an agency ‘credibly believes that the prior policy is a violation of the separation of powers doctrine’”, and, second, that the reliance interests implicated in SIJ deferred action were not serious. The court did not find either compelling. In response to USCIS’ first justification, the court noted that “an agency must always consider serious reliance interests, even when it concludes an earlier policy was unlawful”. In response to the second contention, the court noted that juveniles with SIJ classification, like DACA recipients, may have enrolled in educational programs or begun careers in reliance on the program, and that the consequences of the recission would similarly “radiate outwards” to impact families, schools, and employers. The court also noted that even state governments could be impacted by the recission, as SIJ recipients could become more reliant on state child welfare programs and benefits.

A-C-R provides some hope that deferred action programs can stay in place if the administration does not take into consideration the reliance interests of the stakeholders. In addition to DACA and SIJ deferred action, another program grants deferred action to noncitizen workers who witness or experience labor rights violations.  Although the Fifth Circuit has also ruled that DACA  may not have been authorized under the INA, a final decision has yet to be made on the lawfulness of DACA or other deferred action programs. Even the court in A-C-R-  order referenced the DACA decision, and expressed openness to the government’s claim that its “questionable legality was likely reason enough for USCIS to seek to rescind the policy.”

The executive branch has always been able to grant deferred action, and Congress has never explicitly precluded the grant of deferred action. It is hoped that the executive branch’s ability to grant deferred action is preserved as such a remedy is vital to fill gaps under the immigration system that would otherwise leave vulnerable noncitizens subject to removal. Even if the current Trump administration is averse to deferred action, it should be preserved for more enlightened, immigrant- friendly administrations to provide ameliorative relief to vulnerable noncitizens in an imperfect immigration system.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

The Legal Basis for DACA as Expressed in the Final Rule

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By Cyrus D. Mehta and Kaitlyn Box*

On August 24, 2022, the Department of Homeland Security (DHS) issued a final rule aimed at “preserving and fortifying” the Deferred Action for Childhood Arrivals (DACA) program. The DACA program was initiated by a 2012 memo from then-DHS secretary Janet Napolitano (“Napolitano Memo”) and has been subjected to numerous legal challenges since. Many of our previous blogs discuss the DACA program. The Napolitano Memo stated that DHS would consider deferred action for individuals who met the following criteria pursuant to the DACA program: 1) came to the United States under the age of 16; 2) continuously resided in the United States for at least 5 years preceding June 15, 2012, and were present in the United States on that date; 3) are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 4) have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and 5) were not above the age of 30 on June 15, 2012.

The new final rule takes effect on October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It retains the same criteria for DACA eligibility that were laid out in the Napolitano Memo and preserves the existing process for DACA recipients to request work authorization. The final rule also affirms USCIS’ longstanding policy that DACA recipient are considered “lawfully present”.

It is plain that the new final rule is aimed at insulating the DACA program from being invalidated by future litigation. In a July 16, 2021 decision, Judge Hanen of the U.S. District Court for the Southern District of Texas held that the DHS violated the Administrative Procedure Act (APA) as it was not established through notice and comment rulemaking.. Judge Hanen further reasoned that DHS did not have the inherent authority to enact the program, and held that DACA conflicts with sections of the INA that describe which individuals are removable and lay out a statutory scheme for work authorization. Because Congress had already clearly articulated rules surrounding removal, lawful presence, and work authorization, Judge Hanen held that DACA failed the first step of the Chevron test and violates the APA.  Prosecutorial discretion, of which DACA is a variant, is an established doctrine that does not need to be codified. Promulgating a regulation may protect DACA from some legal challenges, but not all. If litigation asserts that the program is not authorized under the INA, the fact that it was established through notice and comment rulemaking will not provide a defense.

The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for EADs, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status could potentially nudge a court to uphold DACA rather than find it unlawful.

It remains to be seen how DACA fares in the ongoing litigation, particularly in light of the current composition of the Supreme Court. While the U.S. Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California in 2020, the majority’s opinion was based on the improper procedure used by the Trump administration in its attempt to rescind DACA in 2017 in violation of the APA.  The Court in Regents did not reach the question of whether DACA itself was legal. The Supreme Court in Regents also faulted the then Trump administration for not factoring in reliance interests under Encino Motorcars, LLC v. Navarro, 579 U. S. ___ (2016) when rescinding DACA. Justice Roberts writing for the majority observed that DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae, which estimated that hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Unfortunately, notwithstanding the benefits of the DACA program to the US, the reliance interest doctrine may not be relevant if the Court rules that DACA was not authorized under the INA.

In any case, the new final rule is a good step forward and will give the program firmer legal footing. Unless the Supreme Court rules that DACA is not authorized under the INA, the final rule would render it very difficult, if not impossible, for a future administration not friendly towards immigrants to rescind DACA. It is hoped that the judges in the Fifth Circuit, and if not the Fifth Circuit, the Supreme Court removes any ideological lens and is able to see DACA as being lawful and authorized under the INA. If prior rulings have indicated that the government can exercise prosecutorial discretion  on a case by case basis, there is not much difference if the government exercises prosecutorial discretion in an orderly way through the DACA rule. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. A prior 2012 blog by Gary Endelman and Cyrus Mehta, Yes He Can: A Reply to Professors Delahunty and Yoo,  provided an impassioned defense of  DACA. The arguments we made then are still relevant notwithstanding Judge Hanen’s decision that found DACA to be unlawful.  The court reviewing Judge Hanen’s decision need look no further than the newly promulgated provision at 8 CFR §236.21(c)(1) which sums up why DACA is lawful:

Deferred action is an exercise of the Secretary’s broad authority to establish national immigration and enforcement priorities under 6 U.S.C. 205(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on high priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.

While it is hoped that the court will uphold DACA, DACA recipients deserve better than the uncertainty of renewing  DACA  along with work authorizations every two years, and urgently need Congress to regularize their status and place them on a  pathway to citizenship.

 

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.