Practice Alert: Current State of the DACA Program
On September 13, Judge Hanen ruled against DACA and called for the termination of the program, again. We know that the only way to provide permanent protection is for Congress to act NOW.
September 13, 2023
On September 13, U.S. District Court Judge Andrew Hanen issued an order reaffirming its previous determination that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. The order extends the existing district court stay of the program and expanded it to cover the 2022 DACA regulation issued by the Biden Administration.
AILA issued a statement after the district court issued its order finding that the conclusion on the legality of DACA is “incorrect.” AILA Executive Director, Ben Johnson urged Congress to act immediately to pass legislation protecting Dreamers.
DHS Secretary Alejandro Mayorkas issued a statement expressing disappointment with the ruling and emphasizing that “DACA recipients will not lose their protection from removal.”
In practical terms, the new order will not affect the status quo:
- Under the stay, individuals who currently have DACA will retain DACA status and the protection from enforcement it confers;
- Renewals: the order allows USCIS to continue to receive and process requests for renewals from DACA recipients (as of July 6, 2021) or whose DACA protection has lapsed for less than one year; and for
- New applications: the court’s order bars USCIS from processing or granting DACA status for any new applications for DACA.
Short History of How We Got Here
This order comes in the wake of the October 14, 2022, order Judge Hanen issued extending the injunction he had previously issued against DACA in July 2021. On October 5, the Fifth Circuit Court of Appeals had remanded the 2022 DACA regulation to the district court to determine its legality. The Biden Administration issued the final 2022 DACA regulation in August 2022 codifying the program. The final rule took effect on October 31, 2022, but its implementation was delayed by the district court injunction.
AILA welcomed the 2022 rule, but also called on Congress to pass legislation permanently protecting all Dreamers, not just those who qualify for DACA under these regulations. AILA submitted comments on the September 28, 2021, proposed rule.
October 14, 2022
On October 14, following a remand from the Fifth Circuit Court of Appeals, Judge Hanen of the U.S. District Court for the Southern District of Texas issued an order extending the existing injunction to the final DACA regulations and partially blocking the regulations from going into effect. The order stated that DHS may continue to accept and grant DACA renewal applications, but that DHS continues to be enjoined from granting DACA status for any new applicants.
On September 28, 2021, DHS published a notice of proposed rulemaking (NPRM) for DACA. After review of the public comments received, on August 24, 2022, DHS announced a final rule to preserve and fortify DACA that implements the proposed rule with some amendments in a final rule in the Federal Register. The final rule is scheduled to take effect on October 31, 2022. AILA had submitted comments on the proposed rule and welcomed the final rule, but also called on Congress to pass legislation permanently protecting all Dreamers. The new regulations codify the DACA program, in part to try to fortify it during pending litigation. The actual program remains largely unchanged. The final regulations:
- Maintain the existing threshold criteria for DACA;
- Retain the existing requirement that DACA requestors file Form I-765, Application for Employment Authorization, and Form I-765WS concurrently with the Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
- Clarify procedures for termination of DACA and related employment authorization;
- Make clear that USCIS will continue to accept affidavits as proof of continuous residence; and
- Affirm the longstanding policy that DACA recipients have no lawful immigration status, but that, like other deferred action recipients, DACA recipients are considered “lawfully present” when determining eligibility for Social Security retirement benefits as described in 8 C.F.R. 1.3.
Initial applications for the DACA program will not be processed because the injunction from the U.S. District Court for the Southern District of Texas is still in effect. That ruling was appealed, and on September 1, 2022, a supplemental brief was filed with the Fifth Circuit by the government arguing that the states’ legal arguments against the DACA program will be moot after the new regulations take effect on October 31, 2022. Government lawyers argued that because the DHS has now followed the rulemaking procedures under the Administrative Procedure Act, “there will be no continuing controversy regarding whether DHS was required to undertake notice-and-comment procedures before promulgating the DACA policy.” The government lawyers also argued that since the rule replaces a 2012 executive memo with substantively identical regulations, the Fifth Circuit should address the validity of the final rule at the same time it reviews the court injunction.
On October 5, however, the Fifth Circuit Court of Appeals remanded the case back to the district court for further review but kept in place the status quo - that current DACA recipients can renew, but new applications for DACA will not be processed. In remanding the case, the Fifth Circuit held that the 2012 creation of DACA by executive memo was not legal and ordered the district court to address the government's argument based on the new DACA regulation.
While the course of litigation is hard to predict, the uncertainty will likely continue as Judge Hanen considers the validity of the new regulation, and any decision will likely be appealed back again to the Fifth Circuit, and then to the Supreme Court.
Many undocumented students starting college now do not have DACA, and are therefore not able to participate in internships, campus jobs, or work after graduation using their degrees. According to a press release from the Presidents Alliance for Immigration & Higher Education, "over 400,000 students in U.S. higher education are undocumented, and less than half are DACA recipients or DACA-eligible. Every year about 100,000 undocumented young people graduate from U.S. high schools, only one-quarter of whom are estimated to be eligible for DACA. Having DACA significantly increases high school attendance and graduation rates, reducing the gap in attendance and graduation by 40 percent between citizen and non-citizen immigrants." Practitioners representing institutions of higher education can discuss ways to support experiential education for those without employment authorization. For more information, see the Presidents Alliance for Immigration & Higher Education FAQ on Experiential and Funding Opportunities for Undocumented Students.
Given the continued uncertainty around DACA, practitioners should continue screening for other immigration options including SIJS, 245i, d3 waivers, etc. See generally:
- Immigrants Rising and Curran & Berger LLP - Beyond Deferred Action: Long-Term Immigration Remedies Every Undocumented Young Person Should Know About
- The American Immigration Council – Practice Advisory: Screening Potential DACA Requestors for Other Forms of Relief
- CLINIC - Practice Advisory: Screening DACA Recipients for Other Relief
- Immigration Advocates Network and Curran & Berger LLP – Screening Far and Wide (Password = Training2017)
Special thanks to the AILA USCIS Headquarters Liaison Committee, including Dan Berger and Stephanie Lewin.
July 6, 2022
According to an article in Politico, a Fifth Circuit panel appeared unconvinced by DOJ’s arguments defending the legality of the DACA program during a hearing in New Orleans on 7/6/22. The three-judge panel is hearing appeals by the Biden administration, certain states, and individual DACA recipients to U.S. District Court Judge Andrew Hanen’s July 16, 2021, ruling that DACA is unlawful.
DOJ attorney Brian M. Boynton argued that the plaintiff states did not have standing to challenge the federal government’s deferred action policy, because their injury was “purely speculative.” Texas Solicitor General Judd Stone II, meanwhile, argued that Texas did have injury from the DACA program, citing research from economist Ray Perryman that DACA recipients cost the state about $250 million per year.
The Fifth Circuit panel is expected to rule on the case in the coming months, with the losing side likely to seek further review by the full bench of the Fifth Circuit and eventually at the Supreme Court.
July 27, 2021
USCIS updated its FAQs related to DACA, including updated information regarding the 7/16/21 district court decision in Texas, et al., v. Texas, which found the DACA policy “illegal.”
The FAQ states:
- What does this mean if I have an initial DACA request currently pending with USCIS?
- USCIS is not permitted to approve initial DACA requests or accompanying applications for employment authorization while the court order from the Southern District of Texas remains in effect. Therefore, if you have an initial DACA request pending with USCIS, your request will remain on hold in compliance with the court order. At this time, USCIS is holding cases, rather than rejecting or closing them. While USCIS holds these cases, they will remain pending, though under the July 16 court order USCIS is not able to grant the requests that are on hold. Because these cases will remain on hold while the court order is in effect, USCIS will not issue refunds for initial DACA requests that remain on hold while the court order is in effect.
- USCIS may issue further guidance on this subject as the Southern District of Texas litigation continues.
July 21, 2021
Special thanks to AILA member Steve Yale-Loehr for drafting this update.
On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) when it created the deferred action for childhood arrivals (DACA) program in 2012. This Practice Update summarizes the court decision and subsequent administration announcements. It also indicates how to advise DACA applicants and recipients, lists several open questions, and mentions what steps AILA members should take next.
Judge Hanen’s Decision
On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that DHS violated the APA when it created the DACA program in 2012 because it exceeds the power that Congress delegated to the executive branch. Specifically, Judge Hanen held that DHS was required to go through notice and comment rulemaking under the APA. The court also identified substantive flaws with the program. The court held that DHS can continue to process DACA renewals and can accept new DACA applications, but may not approve new applications.
For a good summary and analysis of Judge Hanen’s decision, see this article.
Administration Statements After Judge Hanen’s Decision
On July 17, 2021, the White House announced that the government will appeal Judge Hanen’s decision. The White House also announced that DHS plans to issue a proposed rule concerning DACA “in the near future.”
On July 17, 2021, DHS Secretary Alejandro Mayorkas announced that DHS “remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA. The Department of Justice also intends to appeal yesterday’s order. Moreover, we will continue processing DACA renewal requests, consistent with the ruling.”
On July 19, 2021, acting USCIS director Tracy Renaud announced that all individuals whose DACA requests were granted before July 16 “will continue to have and be eligible to renew DACA, and to request and receive advance parole.” USCIS also stated that additional guidance would be issued “in the coming days.” Finally, USCIS also stated that it would publish a notice of proposed rulemaking to “strengthen and fortify DACA” through the rulemaking process. USCIS also updated the DACA page on its website to reflect Judge Hanen’s decision.
What Does Judge Hanen’s Decision Mean for My Clients?
For DACA recipients as of July 16, 2021:
- If you have DACA now, it is still valid.
- If you have a DACA renewal application pending, you can keep renewing until further notice.
- If you have a pending initial DACA application, there is an indefinite freeze on that application.
- If you are eligible for DACA but haven’t applied yet, USCIS can accept your application but can’t process it. See Batalla Vidal v. Wolf, 501 F. Supp. 3d 117 (E.D.N.Y. 2020).
- If you have advance parole through DACA, it is still valid.
- If you have DACA and a pending advance parole application, USCIS will still process it.
For a good Q&A from United We Dream, see this article.
It is unclear whether people who let their DACA status lapse for more than a year can reapply. In the past, USCIS stated that individuals in that situation should file a new initial application.
It is unclear whether DACA recipients who travel on advance parole will be allowed to re-enter the United States upon their return. They should be allowed to re-enter, just as most DACA recipients in the past successfully re-entered the United States, but we don’t have case examples yet.
It is unclear whether USCIS will cancel biometric appointments for initial DACA applicants, although anecdotal evidence suggests USCIS is doing that.
We don’t know what will happen if a person’s DACA status expires while a renewal application is pending.
Next Steps for AILA Members
AILA members should educate their clients about what Judge Hanen’s decision does and doesn’t mean. They should also encourage Congress to pass legislation to provide a permanent solution for the estimated 700,000 DACA recipients, such as the American Dream and Promise Act, which has passed the House but is stalled in the Senate. Visit this Featured Issue page for more information on what’s happening in Congress, and visit our Action Center to contact Congress. Finally, AILA members should encourage their clients and others to do the same.
July 16, 2021
In an press statement, AILA President Allen Orr and Executive Director Benjamin Johnson responded to the ruling by Texas federal judge Andrew Hanen against the Deferred Action for Childhood Arrivals (DACA) program in this statement, urging the administration and Congress to protect Dreamers.
The district court found that DHS violated the APA with the creation of DACA and its continued operation, stating that the DACA memo and the DACA program that created it are hereby vacated and remanded to DHS for further consideration.
The decision notes:
“DHS may continue to accept new DACA applications and renewal DACA applications as it has been ordered to by the Batalla Vidal court cited above, but it is hereby enjoined from approving any new DACA applications and granting the attendant status.”
January 20, 2021
Special thanks to AILA member, Patrick Taurel, LLP for drafting this alert.
On January 20, 2021, President Biden issued a Presidential Memorandum entitled, “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)” (“The Memo”).
- The Memo directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate consistent with applicable law, to preserve and fortify DACA.”
- The Memo does not make any immediate changes to the DACA program.
- At this juncture, as stated in the December 7, 2020 update below:
- USCIS is accepting first-time requests for DACA as well as DACA renewal requests;
- Grants of deferred action and employment authorization under DACA are to be issued in two-year increments; and
- USCIS is accepting applications for advance parole.
- As of 9:44 am (ET) on January 22, 2021, no decision has been rendered on the parties’ pending motions for summary judgment before the U.S. District Court for the Southern District of Texas in Texas v. United States, 1:18-cv-00068. The State of Texas and other plaintiffs are seeking an order declaring the DACA program unlawful and setting aside the June 2012 Napolitano Memorandum creating the DACA program.
December 7, 2020
- Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
- Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
- Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
- Extending one-year grants of deferred action under DACA to two years; and
- Extending one-year employment authorization documents under DACA to two years.
The notices also state that USCIS will “take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”
December 4, 2020
On December 4, 2020, a U.S. District Court for the Eastern District of New York ordered DHS to fully reinstate the DACA program, finding that Wolf’s July 2020 memo reconsidering the DACA program must be put aside. The order is effective immediately, and DHS is required by the order to post a public notice stating that it is accepting new, initial DACA applications, work permits are valid for two years, and DACA recipients are eligible to apply for Advance Parole.
The court had previously held in a November 14, 2020, decision that Chad Wolf was not lawfully serving as DHS Acting Secretary under the Homeland Security Act when he issued the July 28, 2020, memorandum suspending DACA following the Supreme Court decision in DHS v. Regents of the University of California.
August 26, 2020
On July 28, 2020, Acting DHS Secretary Chad Wolf issued a memo rescinding prior memos that purported to terminate the DACA program and stating that he will reconsider the program’s future in light of the Supreme Court’s decision in DHS v. Regents of the University of California. On August 21, 2020, USCIS issued guidance implementing the Wolf memo. This practice alert provides background on the Supreme Court decision and explains the impact of the Wolf memo and USCIS guidance.
On September 5, 2017, the Trump Administration rescinded the DACA program in a memorandum issued by then-Acting Secretary Elaine Duke. Multiple lawsuits were soon filed challenging the termination, and several courts issued injunctive orders directing the government to partially maintain the DACA program. For more information on these legal challenges, see our litigation tracking page, DHS v. Regents of the University of California. On June 28, 2019, the Supreme Court consolidated and granted certiorari in several of these cases. It heard oral argument on November 12, 2019.
On June 18, 2020, the Supreme Court blocked the government’s attempt to terminate DACA and remanded the case for further consideration. The 5 to 4 majority opinion ruled that DHS’s rescission violated the APA as an arbitrary and capricious final agency action because the agency failed to consider “important aspects of the problem.” Specifically, the Court concluded that DHS failed to consider whether to continue only the deferred action part of the DACA program and that “omission alone renders [the decision] arbitrary and capricious.” In addition, the Court found that DHS failed to address the considerable reliance interests created by the DACA program, such as the impact on Dreamers and their families, if the agency terminated DACA.
Importantly, Justice Roberts noted that the parties agreed that DHS may rescind DACA and emphasized that the court is not deciding whether DACA or its rescission are “sound policies.” Ultimately, the Court rested its decision on well-settled principles rooted in government accountability as codified in the APA: the agency failed to provide a reasoned explanation for its action. Accordingly, the Court remanded the cases for DHS to “consider the problem anew.”
Wolf Memo Issued July 28, 2020
On July 28, 2020, Acting DHS Secretary Chad Wolf issued a memo rescinding two prior DHS memos in light of the Supreme Court’s decision in DHS v. Regents of the University of California: the September 5, 2017 memo issued by then-Acting Secretary Duke that purported to terminate the DACA program and the June 22, 2018 memo issued by then-Secretary Nielsen that purported to provide “further explanation” for the DACA rescission.
In his July 2020 memo, Wolf stated that he plans to reconsider the DACA program’s future and, in the interim, instructed USCIS to reject all pending and future initial requests for DACA, reject all pending and future applications for advance parole absent exceptional circumstances, and limit the period of DACA renewals to one year. Wolf justified these interim actions by claiming that the DACA program “presents serious policy concerns that may warrant its full rescission,” and stating that he is “making certain immediate changes to the DACA policy to mitigate [his] enforcement policy concerns while [he] conduct[s] a full and careful consideration of a full rescission.” Wolf lists his “enforcement policy concerns,” which include Congress’s failure to act, use of discretion in the DACA program, and sending “mixed messages” on enforcement of immigration laws.
USCIS Guidance Issued August 21, 2020
On August 21, 2020, USCIS issued a memo providing additional guidance necessary to implement Wolf’s July 2020 memo. Together, these memos outline the following policies:
- DACA Grants Will Be Limited to One Year; Previous Two-Year Grants Remain Valid: All requests for DACA and associated employment authorization granted after July 28, 2020 will be for a validity period of one year. Fees will remain the same, though the guidance states USCIS is reviewing the feasibility of reducing the fee. However, previous two-year grants of DACA will remain valid. Additionally, two-year DACA recipients who apply for a replacement EAD due to loss, theft, or the mutilation of their prior EAD will receive a replacement EAD with the same expiration date based on the original two-year validity period.
- New, Initial DACA Applications Will Be Rejected: USCIS will reject and return the fees for any initial DACA applications submitted by people who have never received a grant of DACA.
- Initial Applications Filed by People Whose DACA Expired Over One Year Ago Will Be Accepted: USCIS will accept initial applications filed by people whose DACA expired more than a year prior. While the Wolf memo said that all initial DACA requests would be rejected, the USCIS guidance specifically stated that, “given the Acting Secretary's desire to maintain the status quo of the past few years, USCIS will continue to accept and adjudicate such requests notwithstanding any language in the Wolf Memorandum about rejecting ‘all’ requests for initial DACA.”
- Renewal DACA Applications Will Be Accepted: USCIS will continue to adjudicate DACA renewal applications, including applications filed by people whose DACA expired less than a year prior to filing for renewal.
- DACA Renewal Applications Should Not Be Submitted Too Early: The USCIS guidance stated that the agency will begin rejecting DACA renewal requests received more than 150 days prior to the expiration of the recipient's current DACA validity period. USCIS previously encouraged people to apply for renewal between 120 and 150 days prior to their DACA expiration but would generally accept and hold applications filed more than 150 days in advance.
- Advance Parole Based on DACA Will Only Be Granted in Exceptional Circumstances: The USCIS guidance states that advance parole applications based on DACA will generally be rejected, unless there are exceptional circumstances. The guidance provides several examples of travel that could qualify as exceptional circumstances, including:
- Travel to support the national security interests of the United States including U.S. military interests
- Travel in furtherance of U.S. federal law enforcement interests
- Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States
- Travel needed to support the immediate safety, well-being, or care of an immediate relative, particularly minor children of the alien.
- Pending Advance Parole Applications Will Be Rejected; Applicants Can Refile Under New Guidance: USCIS said it will reject and return the fees for all Form I-131 applications that have been held since July 24, 2020, stating that it would be more efficient and fair for applicants to refile their applications under the new guidance because applicants did not have prior knowledge of the new guidance. Any previously approved advance parole documents issued to DACA recipients remain valid for the specified validity period.
- USCIS Will Continue Following Information-Sharing Policy: USCIS will continue to operate under the DACA information sharing policy outlined in the DACA FAQs.