Deferred Action for Childhood Arrivals (DACA) program cannot be ended at this time. Recipients and supporters of the DACA program received exciting news today. The US Supreme Court ruled that DACA cannot be ended by the Trump administration in the immediate future. While the long-term future of this program is still uncertain, this is a big win for “dreamers” and their advocates. The full Supreme Court opinion can be accessed here.
DACA Recipients Have Been in a State of Limbo Since 2017. Deferred Action for Childhood Arrivals, a program initiated by the Obama administration, protects about 700,000 young, undocumented immigrants from being deported and allows them to legally work and attend school in the U.S. For the last three years, those with DACA status have been in a state of limbo after the Trump administration’s September 2017 announcement of intent to end the program and leave many young, undocumented Americans with no protection from deportation and no path to citizenship. Since the announcement, current DACA recipients have been able to apply to renew their status and have been encouraged by attorneys to do so early in case of program termination, but no new applications have been accepted.
The ruling creates an opportunity for more challenges to the program. The court ruled 5-4 on the issue, with liberal justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer forming the majority opinion with Chief Justice John Roberts. The court’s reasoning for blocking the termination of the program is that the Trump administration has not provided a sufficient explanation for ending the program; they did not actually evaluate whether DACA itself is a sound and legal policy. While this is an exciting win, the court’s ruling leaves an opening for the Trump administration to craft sufficient justifications for ending the program and make a second attempt to terminate it that could be upheld by the Court in the future. With only months left before the presidential election, DACA proponents hope that President Trump will not see a second term, leaving little time for a potential second attempt.
The future of DACA remains uncertain, but this ruling is a hopeful sign that buys some time and provides meaningful if temporary relief for current recipients. For now, DACA remains a temporary program, not a permanent policy, but such politicians as Representative Alexandria Ocasio-Cortez of New York are already advocating for permanent legislation to support DACA. Various public opinion polls (Pew, New York Times) indicate that the majority of the general public believes that the DACA program should remain in place.
On Wednesday, the Biden administration released the final version of a rule to fortify and codify the DACA program.
The rule, published on 30 August 2022 in the Federal Register, maintains the DACA program as it was created in 2012 by an Obama-era memo. To be eligible for DACA, a person must have entered the U.S. before turning 16, have not yet been 31 on 15 June 2012, have lived in the U.S. continuously since 15 June 2007, have either completed high school or received a GED, have been honorably discharged from the U.S. armed forces or be enrolled in school, and have no serious misdemeanors or felonies on their record.
The Department of Homeland Security (DHS) received over 16,000 public comments on the proposed rule that was released in September 2021. A lot of these comments urged the DHS, who proposed the new rule, to move the required entry date into the USA forward such that younger individuals who are otherwise eligible for DACA could apply for the program. The new rule maintains the 15 June 2007 requirement.
One change in the final rule is that it does not follow through with a plan to “decouple” work authorization, or the Employment Authorization Document (EAD) application, filed on Form I-765, from the principal DACA application, filed on Form I-821D. The 2012 DACA program required that the application be filed at the same time as the work authorization application; immigration lawyers worried that making the application for work authorization optional would put DACA applicants at risk of losing work permits while waiting for the USCIS EAD backlog to clear.
Regarding ineligibility criteria, the final DACA rule also states that “expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under State laws” will not make someone ineligible automatically for DACA.
The rule also states that work authorization obtained through DACA ends only when someone’s DACA status is declined and not if deportation proceedings are started.
The DACA program, despite the release of the new rule, remains in legal peril at the Fifth Circuit Court of Appeals. The federal appeals court in New Orleans, Louisiana heard oral arguments in early July in response to a ruling by a federal judge in Texas calling DACA unlawful and excluding new applicants from the program in July 2021.
USCIS recommends that DACA recipients submit their renewal requests between 120 and 150 days before their current DACA expires. To request a DACA renewal, the following conditions must be met:
We definitely encourage existing DACA holders to renew their status. Whether or not new applicants will be able to apply for DACA is still unclear. Many legal experts argue that new applicants should be able to apply immediately following the court decision, but USCIS Deputy Director for Policy Joseph Edlow made a statement in clear opposition to the ruling. As of today, there has been no official announcement from the DHS about accepting new applications. We encourage hopeful new applicants to stay tuned.
Passage Immigration Law is a specialist immigration law firm with years of experience dealing with immigration applications. We proudly represent DACA recipients and their families. Whether you’re a current DACA recipient or you hope to apply for the program, get in touch with us to discuss how this Supreme Court decision affects your immigration status. To discuss your situation with a legal team you can trust, contact us at (503) 427-8243 or you schedule a consultation here.
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