DACA Ruled Unlawful (And What This Means For Dreamers)

Erick Widman

For ten years, the Deferred Action for Childhood Arrivals program (DACA) has provided more than 600,000 immigrants who came to the U.S. as minors temporary legal status that makes it lawful for them to live, work, and get a driver’s license, and forbids their deportation among other life-changing provisions.

In October, however, the Fifth Circuit Court of Appeals ruled DACA illegal. Despite its finding, the Fifth Circuit permitted the rule for current recipients and for those processing renewals as the petition continues in the courts. The government can no longer allow new DACA protection to individuals requesting it for the first time. Indeed, it is likely that the courts will end DACA in upcoming years — unless legislature acts now.

Learn how the updates to the DACA program may impact you. Get your initial consultation today at (503) 427-8243 or schedule a consultation here.

How will DACA Updates Impact Dreamers?

On Friday 16 July DACA was ruled as unlawful and subsequently terminated after a review by Federal Judge Andrew S. Hanen of Texas, the judge in charge of the case questioning DACA’s legality. Judge Hanen said that President Obama, who implemented the program through a 2012 executive order, had exceeded his authority by putting DACA in place.

It is important to note that although current applications have been suspended, renewal applications are continuing to be processed. Current dreamers (those protected under DACA) will continue to be granted status in the U.S. that allows them to continue to live and work in the U.S. Even amid this glimmer of positive news, these protections could be terminated if not swiftly secured through federal law. Many advocates and supporters of DACA are urging the Biden Administration to divert funds to citizenship for dreamers before their protections are fully taken away. DACA applicant Sarahi Magallanez shares her personal plight: “DACA is not safe, and we are at the mercy of whoever is in power.”

Looking to the future of DACA and the next steps for the program after this ruling, the Biden administration will likely appeal to the ruling. Then, the fate of the program will be decided by the Supreme Court if Congress does not propose a legislative solution. Additionally, supporters of the program can appeal the decision to the Fifth Circuit.

The lives of 800,000 Americans, 200,000 of whom are essential workers, have been put on a seesaw of omnipresent instability. These dreamers do not know what the government and legal system will decide for their futures. Director of the immigration clinic at the University of Nevada, Las Vegas, Michael Kagan said, “Dreamers may have to live with some level of doubt and anxiety for the foreseeable future.” These developments make it clear that the U.S. immigration system needs to be strengthened and reinforced with more pathways to citizenship and legal immigration if we are to preserve our nation: a nation of immigrants. Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, gave a call to action: “It is absolutely urgent that Congress acts now through the budget reconciliation process to provide dreamers and other undocumented members of our communities with reliable status and a pathway to citizenship.”

The new updates are not significantly different from the program as enacted by memo in 2012. It does not increase the number of individuals eligible for DACA, nor does it address the matters of frequency of renewals or processing delays. However, by going through the formal rulemaking process, during which the Department of Homeland Security (DHS) collected over 16,000 public comments, the officials have rendered moot at least one purported reason that DACA is not lawful.

Qualification for DACA

Approximately 1.8 million people are eligible for DACA, according to the Center for American Progress, but as of March 2020, a little more than 800,000 people were enrolled in the program.

You may request DACA if you:

  • Came to the U.S. before your 16th birthday;
  • Were younger than 31 as of 15 June 2012;
  • Have resided continuously in the United States since 15 June 2007;
  • Were physically present in the United States on 15 June 2012, and at the time of your request for consideration of deferred action with USCIS;
  • Had no legal status on June 15, 2012;
  • Are currently in school, have graduated, got a certificate of completion from high school, received a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  • Have not been convicted of a significant misdemeanor, felony, or three or more other misdemeanors and do not otherwise pose a threat to a public safety or national security.

What can DACA Status Provide?

Individuals who are eligible for DACA can apply for an employment authorization document (work permit) and are considered legally present in the United States. DACA can be awarded to individuals who are in removal proceedings, who have final orders of removal, or who have never been in proceedings of removal.

Applying for DACA can be a daunting process, so it is vital to have an experienced immigration lawyer by your side. Certain criminal convictions can lead to disqualification for DACA. If you obtained bad advice from another attorney and already have a criminal conviction, we can assist you to get that conviction vacated or clarified such that it does not impact your eligibility for DACA. We know what needs to be done, and we can help you throughout the process.

Contact an Immigration Attorney

If you or a loved one has concerns about the current DACA situation or whether you are eligible for renewal, it is vitally important that you have powerful legal representation on your side. The changes made to the deferred action program can be very challenging and can result in significant stress. To find out if you are eligible for DACA, it is imperative that you have an expert immigration legal advice. This legal advisor will explain the risks and benefits of applying for DACA in your specific case. Our immigration lawyers will help you gather the necessary documentation to meet all the requirements to apply for this program.

Passage Immigration Law has proudly served clients across the country from our offices in Portland, Oregon, Los Angeles, California, and Seattle, Washington. To discuss your situation with a legal team you can trust, contact us at (503) 427-8243 or schedule a consultation here.

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