The Batalla Vidal class action lawsuit was initially filed in 2016 to challenge the legality of the process by which the Trump administration was attempting to end DACA. Since that time, the lawsuit has been amended—meaning updated—to challenge unlawful restrictions placed on the availability of DACA by the Trump administration. This website was created to keep Batalla Vidal class members up to date on the Batalla Vidal litigation in the Eastern District of New York, as well as developments elsewhere, including in other lawsuits, that impact the availability of DACA.

On November 14, 2020, the federal district court judge in the Batalla Vidal case in Brooklyn, New York, concluded that a Department of Homeland Security (DHS) memorandum issued July 28, 2020, which restricted the availability of DACA, was issued without legal authority because its author, Chad Wolf, was not lawfully serving as the Acting Secretary of Homeland Security. As part of the November 14, 2020 order, the judge also certified a nationwide class in the case. That class includes all individuals who are or will be eligible for DACA, as well as a subclass of individuals who had applications for DACA, whether initial or renewal, pending with USCIS on any date between June 30 and July 28, 2020, and that had not been or would not be adjudicated according to the 2012 DACA memorandum. If you are in one or both of these categories, you are a member of the Batalla Vidal class without having to take any further steps. The court also appointed the Jerome N. Frank Legal Services Organization at Yale Law School, the National Immigration Law Center, and Make the Road New York as attorneys representing the class.

On December 4, 2020, the court issued an order vacating the July 28, 2020 DHS memo issued by Chad Wolf and returning DACA to its original terms. The government published a notice on December 7, 2020 stating that it would accept first-time requests, renewal requests, and advance parole requests in accordance with the court’s November 14, 2020 order.

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.

As a result of the Batalla Vidal judge’s December 4, 2020 order, tens of thousands of people applied for DACA for the first time. Unfortunately, only a small percentage of those applications were granted and approved; many remain pending.

On July 16, 2021, in a different case challenging the legality of DACA led by the state of Texas, Texas v. U.S., found that the 2012 DACA policy is unlawful. As a result, processing of first-time DACA applications stopped. That court, however, stayed—or temporarily paused—its decision for current DACA recipients, which meant that those who had DACA or whose DACA had lapsed less than a year before could apply for renewal of their DACA and work authorization. The federal government appealed the court’s decision to the Fifth Circuit Court of Appeals to challenge its determination that DACA is unlawful.

While the Texas case was being heard on appeal, the Biden administration issued a DACA Rule in August 2022. When it went into effect on October 31, 2022, the new DACA Rule rescinded and replaced the 2012 DACA memo. All current grants of DACA and advance parole issued under the 2012 DACA memo remain valid under the new Rule. Applications to renew DACA are now governed by the new DACA Rule. Advance parole remains available for DACA holders. The DACA Rule’s new fee structure is now in place. The DACA application has two fees associated with it: $410 for the Employment Authorization Document (“EAD”) and $85 for the form I-821D. Note that whereas USCIS previously accepted a “bundled” fee of $495, it is now requiring that the two fees of $410 and $85 be submitted as two separate payments. In addition, the DACA Rule clarifies that expunged convictions, juvenile delinquency adjudications, and convictions under state laws for immigration-related offenses are not considered disqualifying convictions when applying for DACA.

On October 5, 2022, the Fifth Circuit Court of Appeals issued its decision on the legality of the 2012 DACA policy. As anticipated, the Fifth Circuit agreed with the district court in Texas that DACA is unlawful on both procedural and substantive grounds—in other words, the 2012 DACA memo was unlawfully published without required notice-and-comment procedures, and the 2012 DACA memo is in violation of the Immigration and Nationality Act. The Fifth Circuit also agreed with the district court that the state of Texas has “standing,” or the ability to bring its lawsuit against DACA, because it found that emergency Medicaid costs and public education costs for DACA recipients to be “injuries” suffered by the state. Finally, the Fifth Circuit sent the case back to the district court to consider the legality of the August 2022 DACA Rule, which the Biden administration had finalized through a formal rulemaking process.

On October 14, 2022, the Texas district court halted implementation of the August 2022 DACA Rule, while the court considered its legality. However, the court once again stayed its order to allow current DACA recipients and those whose DACA had lapsed for less than a year to continue to renew their grants of DACA and work authorization while the case continues. But first-time applications are still not being processed. The next step is for the Texas district court to consider the legality of the DACA Rule and issue its decision.

For updates on the Texas litigation, please visit the case timeline page on the Mexican American Legal Defense and Education Fund’s (“MALDEF”) website here: Texas v United States: A Timeline of The Fight to Protect DACA | MALDEF.

The most recent court action in Batalla Vidal took place on August 3, 2022. Because tens of thousands of people who had applied for DACA when the program reopened for eight months in early 2021 remained stuck without a decision, and because Congress had failed to act on legislation to protect DACA and DACA holders, the Batalla Vidal plaintiffs (a nationwide class of all those who hold DACA or are DACA eligible, as described above) asked the New York court for temporary relief for the approximately 100,000 individuals with pending, stalled applications for first-time DACA and DACA renewals that had lapsed for a year or more. Those individuals applied for DACA after the New York court ordered the government to re-open DACA for first-time applicants in December 2020, but whose applications became trapped in limbo when a Texas federal court ordered the government to stop granting initial DACA applications in July 2021.

Unfortunately, on August 3, 2022, the New York court issued its decision, denying plaintiffs’ motion in its entirety. The court is not extending any relief to people with pending first-time DACA applications or whose DACA has lapsed for over a year. The August 3, 2022 decision of the New York court is available here.

No. The New York court denied Plaintiffs’ request for limited relief for first-time DACA applicants and renewal applicants whose previous grants of DACA expired more than a year ago, so it did not change the reality on the ground. Those who hold DACA can continue to renew their deferred action and work permits. The government is still not granting first-time applications or applications from those whose DACA has lapsed for more than one year.

For now, the status quo has not changed:

• Current DACA holders still have DACA. People with DACA or those whose DACA expired in the past year can continue to apply for renewal.
• The government is still accepting, but NOT processing, first-time applications for DACA. This means first-time applications will not be granted or denied, and applicants will not receive work authorization.
• The government is also still accepting, but NOT processing, renewal applications submitted by people whose previous grant of DACA expired more than one year ago. This means that these renewal applications will not be granted or denied, and applicants will not receive new work authorization.
• Advance parole eligibility remains the same for current DACA holders.

As of now, there are no changes in the DACA program since July of 2021, other than USCIS now accepting DACA renewal applications electronically and requiring separate payments for the Employment Authorization Document and the request for deferred action (Form I-821D).

❖ Q: I have never had DACA before. Should I send my first application if I have my documents ready?

❖ A: This is an individual decision you should make in conjunction with your lawyer or legal representative. The application request costs $495 in total, and although USCIS will accept the application, keep the money, and issue a receipt notice, the application will not be granted or denied.

❖ Q: I have already sent in my application for DACA for the first time but I never got a response. What will happen next?

❖ A: The application will not be granted or denied. On July 27, 2021, USCIS advised they will be putting these applications “on hold” and will NOT be refunding application fees or rejecting applications. This could change in the future. You can check uscis.gov/daca for updates.

❖ Q: My first-time DACA application was granted before July 16, 2021. Has anything changed?

❖ A: No, your DACA and work permit remain valid. You can use your work permit and you are entitled to a Social Security number and could be eligible for other benefits. You can also file to renew your DACA as long as you do so no more than a year after it expires.

While the Texas proceedings continue, the Texas court order and the Fifth Circuit opinion allow current DACA holders to continue benefiting from DACA. Your work permit continues to be valid, and you may be eligible for other benefits.

❖ Q: Has anything changed with my DACA or work permit?

❖ A: No, you will continue to be protected against deportation, and you may continue to use your work permit, Social Security number and any other benefits associated with your DACA.

❖ Q: When should I renew my DACA?

❖ A: USCIS encourages renewals to be filed between 120 and 150 days prior to the expiration of your DACA. However, USCIS will accept your application before 150 days but will not process it until 150 days before your DACA expires. If your DACA expires in the next few months, we encourage you to renew as soon as possible. Whether or not you renew early, you should not wait more than a year after the expiration of your DACA to file a renewal. USCIS will not process your renewal application if more than a year has passed after your DACA expires.

❖ Q: What if my DACA expired more than one year ago?

❖ A: USCIS is not granting applications for previous DACA holders whose DACA lapsed for over one year. You may still file an application but it will not be approved unless the government changes its current practice.

USCIS continues to process and issue advance parole for current DACA holders.

❖ Q: I have received advance parole. Can I still travel?

❖ A: Your advance parole is valid and you may travel and re-enter the United States using the document as long as your DACA remains current. However, we always recommend you consult with an attorney or accredited representative about individual risks before traveling.

❖ Q: I have an advance parole application pending. What will happen next?

❖ A: If your DACA is current and you meet the advance parole eligibility requirements, USCIS will continue to process and issue a decision on your advance parole application.

❖ Q: I was planning on applying for advance parole. Should I still apply now?

❖ A: If your DACA is current and you are eligible for advance parole, you may apply. Your application will be processed. However, you should pay attention to the media and uscis.gov/daca for any further court updates that may impact advance parole for DACA holders.

Yes. The current DACA program is subject to change based upon court orders or federal government policy change. For updates on the Texas litigation, please visit the case timeline page on the Mexican American Legal Defense and Education Fund’s (“MALDEF”) website here: Texas v United States: A Timeline of The Fight to Protect DACA | MALDEF.

• The back and forth in the courts makes it clear that we need Congress to act now. Immigrants across the country are fighting to create a pathway to citizenship for all that is inclusive of DACA beneficiaries and their families.
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