DACA UPDATE - October 7, 2022
What is the current status quo in light of the Fifth Circuit decision?
Currently, 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. 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. Advance parole eligibility remains the same for current DACA holders.
What has happened in the DACA Litigation?
On December 4, 2020, the District Court for the Eastern District of New York in Batalla Vidal et al. v. Mayorkas, et al. ordered the government to accept first-time requests for DACA, renewal requests, and advance parole requests based on the terms of the 2012 DACA program.
On July 16, 2021, a Texas federal court, in a different case led by the state of Texas, found that the 2012 DACA policy is unlawful. 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.
On October 5, 2022, the Fifth Circuit Court of Appeals issued its decision on the legality of the 2012 DACA policy. For now, the Fifth Circuit kept the district court’s stay in place, which means that current DACA recipients can continue to benefit from DACA and renew their grants of DACA and work authorization while the case continues, but first-time applications are still not being processed. As anticipated, the Fifth Circuit agreed with the district court 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. The Fifth Circuit also remanded the August 2022 DACA Final Rule to the district court to consider it in the first instance. The next step is for the Texas district court to consider the legality of the DACA Rule and issue its decision.
What happened in the Batalla Vidal case in New York?
Currently, counsel in the Batalla Vidal case is analyzing potential next steps. The most recent court action in Batalla Vidal took place on August 3, 2022. With Congress having failed to act and a proposed new DACA regulation still unfinalized, the Batalla Vidal plaintiffs (a nationwide class of all those who hold DACA or are DACA eligible) asked the New York court for relief for the approximately 100,000 individuals whose applications for first-time DACA, or renewal where their previous DACA expired more than one year ago, are stalled. Those individuals applied for DACA after the court ordered the government to re-open DACA for first-time applicants in December 2020, but whose applications were pending when a Texas federal court ordered the government to stop granting initial DACA applications in July 2021. We explained to the New York court that they could provide meaningful relief to the 100,000 first-time DACA applicants and lapsed renewal applicants who applied during that period and whose applications are still in limbo.
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.
What does the New York court’s August 3, 2022 order mean?
The ruling is a disappointment for the nearly 100,000 class members whose applications are stuck in limbo. This ruling shows the Biden administration refuses to do things they could have done, such as allowing people whose DACA expired more than one year ago to renew or process further the applications of first-time applicants whose applications are now pending. However, the decision does not change the status quo.
Does the New York court’s August 3, 2022 order change the DACA program?
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. 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.
What does this mean for first-time DACA applicants?
As of now, there are no changes in the DACA program since July of 2021, other than USCIS now accepting DACA renewal applications electronically.
- Q: 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 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. What will happen next?
- A: The application will not be granted. 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.
What does this mean for current DACA recipients?
While the Texas proceedings continue, the Texas court order and the Fifth Circuit opinion allow current DACA holders to continue benefiting from DACA, and work permits remain valid. 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.
- 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.
What does this mean for travel on advance parole?
USCIS continues to process and issue advance parole from 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.
Could any of this change?
Yes, the current DACA program is subject to change based upon court orders or federal government policy change. Please check this website for updates.
- 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.
- sign up for updates on our class action website.