DACA UPDATE - August 8, 2022
What is the current state of the DACA program?
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 found that the 2012 DACA program is unlawful. The federal government has appealed this decision to the Fifth Circuit Court of Appeals. For now, those who currently have DACA or had it at any time in the past can file for renewals of their DACA and work permits. However, the federal government is currently not granting applications from first-time applicants and anyone whose DACA status expired more than one year ago. In fact, the government is not even processing these applications. Further, the government has chosen, without explanation, to treat renewal applications from DACA recipients whose previous DACA grant expired more than one year ago as first-time DACA applications, which it cannot decide on under the Texas court’s decision.
On July 6, 2022, the Fifth Circuit Court of Appeals heard oral arguments in the Texas litigation in New Orleans, Louisiana. These arguments related to whether Texas and the other states that are challenging the legality of the DACA program have “standing” or the ability to bring their lawsuit. The arguments also addressed the legality of the 2012 DACA Memorandum itself and the appropriate remedies. The next step is to wait for the Fifth Circuit to issue its decision. The timing of the Fifth Circuit decision is uncertain.
On August 3, 2022, the Eastern District of New York issued its decision in Batalla Vidal, denying plaintiffs’ request for limited relief for people with pending first-time DACA applications or DACA recipients whose previous grant of DACA lapsed over a year ago. This decision does not change the current status quo in any way, so those who currently have DACA or had it at any time in the past can file for renewals of their DACA and work permits (unless their DACA has lapsed for more than one year).
What happened in the Batalla Vidal case in New York?
On April 4, 2022, the Batalla Vidal plaintiffs (a nationwide class of all those who hold DACA or are DACA eligible) had a pre-motion conference with the court in the Eastern District of New York. With Congress having failed to act and a proposed new DACA regulation still unfinalized, plaintiffs 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 there is a space between the New York order and the Texas order that would allow the New York court to 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.
After the pre-motion conference, the parties submitted briefs on three possible options: (1) the possibility of ordering the government to process first-time DACA applications submitted between December 2020 and July 2021 up to the point of, but not including, a grant or denial, (2) some form of interim relief to those DACA applicants that would last until their applications are ultimately adjudicated, and (3) the possibility of ordering the government to treat renewal requests from DACA recipients whose previous grant of DACA expired more than a year prior to their renewal request as renewals rather an as initials (currently the government is treating those applications like first-time DACA requests and not adjudicating them). The briefing was completed on June 6, and the New York court heard oral arguments on July 7, 2022 in Brooklyn, New York.
On August 3, 2022, the New York court issued its decision on plaintiffs’ motion. The court denied the motion in its entirety and is not extending any relief to people with pending first-time DACA applications or whose DACA has lapsed for over a year.
In short, the government argued the relief plaintiffs were seeking (i.e., helping people with pending applications) was not appropriate for the court to do in this case because the impediment to DACA now is the July 2021 Texas order, not the government's failure to implement the New York court’s 2020 decision (which concerned the Trump Administration’s 2020 attempted revocation of DACA). The New York court openly criticized both the government for its policy choices and the Texas court for its July 2021 order, but ultimately chose to accept the government's argument.
The August 3, 2022 decision of the New York court is available here.
What does this 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 this change the DACA program?
No. As of August 3, 2022, 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 decision is appealed, the Texas court order allows current DACA holders to continue benefiting from DACA and work permits remain valid. You can use your work permit and you are entitled to a Social Security number and could be eligible for other benefits. The August 3, 2022 decision in this case in New York does not change this.
- 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.
- up for updates on our class action website.