Latest on DACA: Renewals Being Accepted, Initial Applications May Soon Be Accepted, Serious Challenges Coming

Federal court gives DHS 90 days to explain why DACA program shouldn't be continued.

In September 2017 the Trump administration announced it would end the Deferred Action for Childhood Arrivals (DACA) program, which provided work permits and a two-year protection from deportation to certain undocumented immigrants who entered the U.S. as children. The DACA program began in 2012 under the Obama administration and benefited those who came to the U.S. before they reached 16 years of age, continuously resided in the U.S. since June 15, 2007, didn’t have significant criminal convictions, and met other requirements.

Department of Homeland Security Announces DACA Will End

The official announcement to terminate DACA was made on September 5, 2017, by the Department of Homeland Security (DHS). It issued a memo stating that no new DACA applications would be accepted and that renewal applications would be accepted only from people whose DACA expired on or before March 5, 2018. Under the memo, existing DACA permits would remain valid until their expiration dates.

After this announcement, it seemed that the DACA program would be phased out as the permits expired, especially because no new or renewal applications were being accepted. Hopes that Congress might pass a bill protecting DACA beneficiaries after the administration terminated the program have remain unfulfilled.

Various Federal Courts Rule That DACA Program Must Continue

In January and February 2018 two separate federal courts, in California and New York, issued decisions that applied nationwide, requiring DHS to continue accepting DACA renewal applications until final court decisions on the DACA matter could be made. The two courts made similar findings—that the manner in which the Trump administration ended the DACA program was ultimately likely to be found “arbitrary and capricious” and therefore unlawful.

These two courts did not go so far as to order DHS to accept new applications (from people who had never had DACA before). DHS announced that it would follow the courts’ orders and continue to accept renewal DACA applications, but would still not accept new DACA applications.

More recently, in April 2018, a third federal court in Washington, DC made an even more expansive ruling regarding DACA. It found that, because there was substantial likelihood that the manner in which the Trump administration ended the program was arbitrary and capricious, the entire September 5, 2017 memo should be vacated.

This means that DHS would be required to accept initial DACA applications in addition to renewal applications.

Importantly, this order will not go into effect until at least 90 days after it was made (in July 2018), so as to allow the government to more fully explain its decision to terminate DACA.

Therefore, even in the best-case scenario, new DACA applications will not be accepted until late July 2018, and they may never be accepted if a government challenge to the order is successful.

Texas and Six Other States File Suit Over DACA

In May 2018, Texas and six other states filed a federal lawsuit in Texas, asking the court to declare the entire DACA program unlawful and for the program to be phased out. This lawsuit, as of now, will not affect those with DACA, or those applying for DACA renewals. It will be several months before any kind of decision is made in the case.

In theory, a judge in the Texas case could order the DACA program to stop, which would be in direct conflict with other federal courts’ orders for the program to continue. It is not clear how DHS would proceed in this case or whether the Supreme Court would take up the issue.

You May Want to File an Initial DACA Application If a Window Opens Summer of 2018

If you qualify for DACA but have never applied for it before, consult an immigration attorney as soon as possible about the benefits and risks of applying if and when a window for new applications opens. If that happens this summer, it may be for only a short time, so it is important to also follow DACA developments and consult the United States Immigration and Citizenship Services (USCIS) website to determine whether new applications are being accepted.

It is also important to find an attorney who understands your case and can begin preparing it before the last minute, as the best attorneys become extremely busy when major deadlines like this come along.

The fate of the DACA program is for now uncertain as legal battles play out in federal courts across the country.