DACA Invalidated Once More, Yet Safeguards Remain in Place for Current DACA Recipients

The Deferred Action for Childhood Arrivals (“DACA”) program was implemented in 2012 by the Department of Homeland Security under the Obama Administration. The purpose of the program is to allow undocumented individuals who came to the United States as children to apply for temporary protection from deportation and work permits.

For the past 8 years, the DACA program has been targeted with various lawsuits specifically focusing on the fact that the program was implemented through executive action. In October 2022, the Biden Administration, in an effort to preserve and fortify DACA, made the initial stride to regularize DACA with Final Rule DACA – a formal regulation.

The most recent ruling on the topic came on September 13, 2023, where Judge Hanen from the U.S. District Court for the Southern District of Texas held the DACA program was unlawful and expanded his order to cover the Biden Administration’s 2022 Final Rule DACA. As of now, the protections for current DACA recipients remain in place, and DACA recipients can continue to renew their DACA protection. Similarly, those meeting the criteria for DACA under the Biden Final Rule DACA can continue to submit applications for DACA protection, but their applications will be held in abeyance pending the outcome of litigation.

It is expected that the legal battle will continue as the Biden Administration will appeal the most recent decision from Judge Hanen, as the Biden Administration has expressed its commitment to regularizing DACA.

Although the recent developments have been disheartening to many immigrants and their families, it is important to note that the fight is not over and the benefits that have been granted are significant to many immigrant families in the United States. Since its inception, the DACA Program has helped roughly 580,000 individuals obtain deferred action from deportation and obtain lawful employment in the United States.

Below we discuss the qualifications for initial and renewal DACA applications, the timeline of the DACA legal battle, and the implications on current and prospective DACA recipients.

Who qualifies for DACA?

DACA recipients, often referred to as “Dreamers,” have to meet the following criteria for an initial grant of DACA:

• Are under 31 years of age as of June 15, 2012;
• Came to the U.S. while under the age of 16;
• Have continuously resided in the U.S. from June 15, 2007 to the present;
• Entered the U.S. without inspection or fell out of lawful immigration status before June 15, 2012;
• Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
• Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
• Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors of any kind; and
• Do not pose a threat to national security or public safety.

Individuals who met the above criteria and applied for DACA were able to obtain DACA for a period of two years subject to renewal.

Renewal of DACA Applications

To renew DACA, applicants need to meet the following criteria:

• Did not depart the United States on or after Aug. 15, 2012, without an approved advance parole travel document;
• Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
• Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Timeline of DACA and its Legal Battles

The DACA program has faced many legal challenges. It is helpful to understand the timeline of the DACA program and the many politically motivated legal challenges it has faced to understand where the program currently stands. The following is a summary of the major events in the DACA timeline:

• June 15, 2012: The Department of Homeland Security (DHS) under the Obama Administration issued the DACA Memorandum outlining the guidelines for granting DACA to eligible individuals.
• November 20, 2014: The DHS, still under the Obama Administration, issued a supplement memo amending the guidance and reflecting new polices for the expansion of DACA.
• September 5, 2017: The DHS under the Trump Administration announced the phase out of the DACA program and the rescission of the initial DACA memo. After this date, USCIS would no longer able to accept initial DACA requests, only process those requests that were already pending.
• January 9, 2018: Judge William Alsup of the U.S. District Court for the Northern District of California, issued a national injunction ordering the Trump administration to re-start the DACA program. USCIS announced that it had resumed accepting DACA requests.
• February 26, 2018: The Supreme Court declined to hear the Trump administration’s request to review the lower court order, so that the Ninth Appeals Court can review the ruling.
• April 24, 2018: Federal Judge John D. Bates of Federal District Court for the District of Columbia ruled that DACA protections must stay in place and that the government must resume accepting new applications. The judge stayed his decision for 90 days to give DHS the opportunity to explain its reasoning.
• August 3, 2018: Judge Bates issued an opinion upholding his April 24, 2018, decision allowing DACA renewals, but partially stayed the order regarding new applicants.
• June 18, 2020: By a vote of 5-4, the Supreme Court ruled that the administration acted improperly in terminating the program. The ruling allowed the DACA program to remain in place.
• December 4, 2020: Judge Nicholas Garaufis of the U.S. District Court in Brooklyn ordered Department of Homeland Security to fully reinstate the DACA program.
• January 20, 2021: President Biden issued a memorandum directing DHS, in consultation with the Attorney General, to preserve and fortify DACA, consistent with applicable law.
• July 16, 2021:  Judge Hanen from the U.S. District Court for the Southern District of Texas ruled that DACA is illegal because it was not lawfully implemented. The court allowed current DACA recipients to continue to renew their applications and work cards, however, the court put a stop to initial DACA applications.
• October 5, 2022: The Fifth Circuit Court of Appeals affirmed that DACA is illegal because it was not lawfully implemented and sent the case back down to the Texas District Court for the Southern District of Texas.
• October 31, 2022: The DHS under the Biden Administration issued Final Rule DACA, a new regulation that formally established the DACA policy in an effort to strengthen the legal underpinnings of DACA.
• September 13, 2023: Judge Hanen from the U.S. District Court for the Southern District of Texas reaffirmed that the original DACA program is illegal and expanded his order to cover Final Rule DACA until further order. The court stayed the vacatur order that allows current DACA recipients to continue to renew their applications and work cards and impeded the grant of new applications.

Potential Next Steps

The Biden administration has expressed its commitment to protecting Dreamers and is expected to appeal the decision by Judge Hanen. The program’s future is dependent on comprehensive immigration reform and action by Congress.

The Impact on DACA Recipients

Although the latest decision is unnerving to many immigrants in the United States, Judge Hanen’s ruling on the DACA program and Final Rule DACA stayed the limitations that were already in place for current and prospective DACA recipients.
As of right now:

• Current DACA recipients can renew their applications and work cards;
• Current DACA recipients can obtain advance parole to travel internationally;
• Initial DACA applicants cannot obtain relief but may apply; and
• Previous DACA recipients who failed to apply for a renewal within one year of the expiration of their DACA status cannot obtain relief but may apply.

It is important for current DACA recipients to renew their applications while it is lawful and avoid expiration of their approval notices. Additionally, under certain circumstances, it may be beneficial for DACA recipients to apply for an advance parole travel document, to permit international travel and facilitate an entry with inspection into the United States.

How Can We Help?

At Kolko & Casey, P.C., we understand the concerns and anxieties that DACA recipients and their families are experiencing. We are here to provide guidance, legal assistance, and support as we continue to work towards a more certain and inclusive future for DACA recipients.