DACA Continues Amid Legal Challenges and Uncertain Future

The Deferred Action for Childhood Arrivals (DACA) program faced another legal setback after a three-judge panel at the U.S. Fifth Circuit Court of Appeals issued a decision holding that the program was unlawful. The ruling affirms the decision issued in a lower court by U.S. District Judge Andrew Hanen that the program was not legal because it was not subject to public notice or comment under the federal Administrative Procedures Act requirements. The 5th Circuit’s decision sends the case back for review to Judge Hanen, tasking him with evaluating whether or not the Biden administration's new regulation on DACA, issued in August of this year, is in compliance with federal law.

In a hearing on October 14, 2022, Judge Hanen indicated that he would allow the DACA program to remain in place for the time being but noted that the court would undertake a review of the new regulations related to the program. No timetable was provided for this review. The ruling keeps DACA in place and allows those who received work permits and deferred status to keep benefits, but it stops the administration from approving new applications.

The new rule took effect on October 31, 2022, and despite being 453 pages long, it provides little substantive changes to the DACA program that has been in place since 2012. Instead, the Biden administration hopes this procedure will allow DACA to withstand future legal challenges. The legal challenges against the program have been led by conservative states, including Texas, who argued that it was not legal when President Obama originally established it. Legal experts believe the Supreme Court may ultimately hear the case if Judge Hanen strikes the program again.

The Supreme Court has previously considered issues related to the program, including a 2020 5-4 decision, which held that the Trump administration failed to follow federal procedures when it ended the program. Despite these previous rulings, many remain concerned that the conservative-leaning body will vote against the program. President Biden issued a statement expressing disappointment over the continued legal challenges to DACA and called on Congress to pass a comprehensive solution to the issue. 

"Today’s decision is the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade," Biden said in a statement. "And while we will use the tools we have to allow Dreamers to live and work in the only country they know as home, it is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship."The fight leaves more than 600,000 DACA recipients in legal limbo, uncertain of what their ultimate future may be in the United States. While President Biden has claimed that he will do “everything within [his] power” to protect the program, advocates are calling for a permanent solution to the issue. This includes legislative solutions that provide DACA recipients with a pathway to citizenship. However, the prospects for legislative solutions may prove difficult if Democrats lose control of Congress in the upcoming November election. Many DACA recipients remain critical of both the decision by the courts and the failed promises by Democratic lawmakers and administrations that have kept them in an uncertain and precarious situation for years.

“It is beyond time for Congress and Biden to act on their promises to secure permanent protections for Dreamers, including a pathway to citizenship, once and for all,” the advocacy group Families Belong Together said in a statement cited by Politico.  

What does this mean for DACA Recipients? It is important to note that this ruling does not change the status quo for DACA recipients. They can continue to work and enjoy their benefits and status under the program. Furthermore, it does not appear that Judge Hanen will make a sudden decision to strike down the program, though that remains a possibility in the future as he reviews new rules put forth by the Biden administration. Many believe that if Judge Hanen ultimately decides to end the program, his decision will include a “wind down” period based on the impact the termination may have on DACA recipients. The ruling does prevent USCIS from approving any new applications for the program and leaves the ultimate future of all DACA recipients up in the air. For the latest updates on USCIS, including changes that may occur after the publication of this blog, please check the USCIS website on DACA.

DACA Update – Court Partially Ends DACA, Advocates Await Action

"Defend DACA March / Dream Act Now" by Rodney Dunning is licensed with CC BY-NC-ND 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-nc-nd/2.0/

On July 16, 2021, a U.S. District Court in Texas issued a decision ruling that the Deferred Action for Childhood Arrivals (DACA) program was created unlawfully and halted any new applications under the program from being adjudicated. The ruling was made after a group of states, led by Texas, sued to end the program. The court found that DACA violated the Administrative Procedure Act (APA). The ruling is now the latest chapter in the lengthy legal saga for the DACA program and has renewed calls by advocates for Congress to act on the issue.

What you need to know

The ruling by the court is another major setback for the future of the DACA program. Here are the most important pieces of information from the ruling:

• Currently, if you have DACA, your status remains valid. Those who currently have DACA will retain their protection and work permit as long as they obtained DACA on or before July 16, 2021, including those with pending renewal requests.

• The ruling also allows for DACA renewals to continue. Those who have DACA now or had DACA in the past can still file to renew their case. Renewal applications that are pending should be processed normally.

• The ruling prevents USCIS from approving any requests for first-time DACA applicants.  All DACA initial cases will remain on hold with USCIS until further notice, regardless of whether or not the person has attended their biometrics appointment. For those who have not yet attended their biometrics appointment, USCIS has canceled all future DACA biometrics appointments for first-time DACA applicants. 

• For those who have not yet submitted their initial application for DACA, the Court's decision does continue to allow individuals to submit their DACA application for the first time, but it prohibits USCIS from making a decision on the case.

• Advance Parole will also continue for DACA recipients, according to USCIS. “All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.”

Following the ruling, USCIS issued the following update on its website:

“Consistent with this order, DHS will continue to accept the filing of both initial and renewal DACA requests and accompanying requests for employment authorization. However, pursuant to the July 16, 2021, order from the Southern District of Texas, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization. Also consistent with that order, according to existing policy, DHS will continue to grant or deny renewal DACA requests.”

Advocates Call for Action

Following the ruling by the court, the Biden administration promised to appeal the decision, with Reuters news reporting, “Biden said in a statement that the Justice Department will appeal Hanen's ruling. The Democratic president also said the Department of Homeland Security, which oversees immigration issues, will soon issue a new regulation intended to strengthen DACA's legal standing.”

"Yesterday's federal court ruling is deeply disappointing," Biden said. "While the court's order does not now affect current DACA recipients, this decision nonetheless relegates hundreds of thousands of young immigrants to an uncertain future."

"But only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve," added Biden.

The ruling was slammed by advocates, many of whom are tired of DACA facing years of uncertainty in the courts. The Home Is Here Coalition, which includes immigrant advocacy groups like United We Dream, released a statement calling the court's decision “cruel and malicious.” The group added, “This decision is a reminder that DACA has never been enough to protect immigrant communities who continue to be at risk of deportation.”

The ruling resulted in many activists calling on Congress to take action to resolve the question of DACA’s fate once and for all. Activists took to Twitter to demand Congress take action and pass legislation providing Dreamers a pathway to citizenship.

Unfortunately, the prospect of a Congressional solution to this issue remains daunting. While Democrats control the Senate and House by slim margins, they don’t have the 60 votes necessary to overcome a Republican filibuster and advance legislation without a prearranged deal. However, Democrats may include a pathway to citizenship for DACA recipients in a forthcoming $3.5 trillion dollar spending package that would pass the Senate by a simple majority using a process called budget reconciliation.

For now, if you or a loved one have questions about how the decision may affect your immigration status, please be sure to reach out to a qualified legal representative and have an individual assessment of your case.

Questions on DACA - Now that Trump is Gone, Can I Apply for Advance Parole?

As part of our common questions series, ILD will cover questions that we often encounter from community members to provide updated and accurate information. Please remember that this blog does not constitute legal advice, and if you have a specific question for you or your family, please be sure to seek a legal consultation from a qualified immigration attorney, such as ILD. 

Background: What is Advance Parole for DACA

• Advance Parole is a type of permission DACA recipients can seek in order to travel abroad and be allowed to seek to reenter the United States. Applicants who are approved receive Form I-512L and can use it to reenter the country. 

• Once they reenter, they are “paroled” into the country. It is important to note that even if you obtain and receive Advance Parole, you will still be subject to inspection by Customs and Border Protection at a point of entry or airport.

• Immigrants with various backgrounds can apply for Advance Parole, but DACA recipients have very specific requirements that they must meet in order to apply. 

Eligibility for DACA Recipients 

In order to apply for Advance Parole, DACA applicants must fill out Form I-131, Application for Travel Document, and pay the applicable fee (currently 575 dollars). However, filling out this form does not guarantee approval. United States Citizenship and Immigration Services (USCIS) must determine that your reason for travel is justified based on three general categories.

Generally, USCIS will only grant advance parole if your travel abroad will be in furtherance of:

·   humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;

·   educational purposes, such as semester-abroad programs and academic research or;

·   employment purposes such as overseas assignments, interviews, conferences or training, or meetings with clients overseas.

In order to file, applicants must provide supporting evidence that they fall into one of these categories. For example, you can include proof that you are attending a conference for employment purposes and also include a letter from your employer. Alternatively, you can provide proof of enrollment in an educational program requiring travel or submit medical documents showing that a family member is ill and you must travel for humanitarian purposes. 

Typically, applications can take about three to four months in order to be approved. If your need to travel is based on urgent circumstances, you can schedule an expedited request for approval by contacting USCIS or scheduling an infopass appointment. 

Many DACA recipients have been able to obtain advance parole and successfully travel abroad and return. In order to understand what the latest trends are in terms of approvals and application time, please contact ILD or another immigration legal services provider. 

Risks and Tips 

It is important to note that an approved Advance Parole document does not guarantee entry into the United States, instead it allows a recipient to request admission or reentry. Once you present yourself at a port of entry (for example, at the airport), you will still have to go through an inspection and admission process. 

Your Advance Parole will serve as the basis for your reentry into the United States, and assuming everything is in order, you should be allowed to return; however, it is critical to note that you are not guaranteed reentry, particularly if there is an issue that can serve as a basis for denial of entry. 

Issues related to reentry can include prior criminal convictions, deportations, or other facts in your background. That is why it is absolutely essential for you to consult with an experienced immigration attorney in order to be confident about your plan to travel abroad and return safely. 

Some important tips to keep in mind when traveling include consulting with an immigration expert before traveling and having a clear plan for your departure and return. This plan can include carefully selecting what airport you fly into, as certain ports of entry can be more or less friendly to DACA recipients with Advance Parole. You should also be prepared in case you are sent to secondary inspection by an officer (at the airport or border), and are asked specific questions about your status, reasons for travel and immigration history. Lastly, you should be sure to carry your unexpired DACA Employment Authorization Document, valid passport, and original Advance Parole document with you. 

Finally, be sure to check how COVID-19 may affect your travel plans. Travel abroad may be impacted by COVID-19 restrictions, and some countries may have specific requirements around testing and vaccination in order to be admitted. Carefully review with your attorney what, if any, information is available with respect to the country you seek to travel to. 

Advance Parole and Adjustment of Status

Advance Parole for DACA recipients is not only a path to traveling abroad, but for some, it can actually be a path to obtaining a green card or permanent residency through marriage with a U.S. citizen spouse. This is because, under current law, a person who did not enter the United States lawfully is generally not allowed to apply for a green card and adjust their status while in the United States and is forced to go abroad to complete the process. This can cause complications for those who have lived in the United States for many years without any status. 

DACA recipients who are able to travel abroad and return to the United States are deemed to have been lawfully admitted to the country and have been viewed as satisfying this requirement that many are otherwise unable to achieve. As a result, many DACA recipients who have traveled abroad have been able to return to the country and obtain their green card through their marriage with a U.S. Citizen.

It is important to note that it is unclear if this process will continue to work in the future as the policy can change for DACA recipients.  It is important to have a specific consultation in order to understand how this process might help or affect you.

You can find out more information about DACA from USCIS here.

This blog is intended for informational purposes only and should not be relied upon as legal advice. Please contact an immigration expert or non-profit, such as Immigrant Legal Defense, before making any decisions about Advance Parole for DACA.

DACA is restored, but is the program safe?

On December 4, 2020, a federal court in New York ruled to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program after years of legal battles and uncertainty for hundreds of thousands of DACA beneficiaries. The ruling is the latest chapter of a legal battle against the Trump administration, which has sought to terminate the program since 2017. Immigration advocates have fought not only to challenge the termination of the program but also to force the administration to allow new applications to be accepted once again. The court's ruling does just that and more, with USCIS posting a notice on December 7th that they are indeed accepting initial DACA applications and applications for travel on advance parole and reinstating DACA to a two-year program. 

Does this mean that the DACA program is safe? Well, that remains to be seen, as yet another court is considering a legal challenge with respect to the legality of the program. On Tuesday, December 22nd, a U.S. District Court in Texas heard a case brought by Texas Republican Attorney General Ken Paxton and eight other states seeking to end the program and claiming it is a drain on state resources and violates federal law.

The legal challenge in Texas is significant, not only as a threat to the program but as an important legal ruling on whether or not programs like DACA can exist moving forward. Advocates seeking to defend the program include the Mexican-American Legal Defense Fund (MALDEF). “This case is an attack on the underlying legality of DACA itself,” said Nina Perales, a lawyer for MALDEF when interviewed by CBS News. “This case seeks a ruling that DACA is unlawful that would bind any future administration.” 

That means a ruling by the Texas court could potentially impact any future version of the program by the Biden administration, which has repeatedly stated that Biden intends to restore and protect the program fully. 

A negative ruling by the Texas court could potentially put the DACA program back into limbo and could result in an appeal by advocates like MALDEF or the creation of a different replacement program by the Biden administration that could withstand legal challenges.

Andrew Hanen, the Judge presiding over the case, previously issued a ruling in 2015 invalidating the expansion of the DACA program and the implementation of the DAPA program to parents of U.S. citizens and lawful permanent resident children. However, Judge Hanen has also previously denied requests by Texas to temporarily block the DACA program while the lawsuit continued.

In addition to the legal challenges, the ultimate fate of DACA recipients, who still lack a true path to citizenship, is in the hands of Congress. The January 5th runoff election in Georgia is potentially set to determine control of the Senate and perhaps the long-term fate of DACA and its beneficiaries. Regardless of what the outcome of the pending case in Texas is, the ILD team will work closely with national advocates and with our clients to continue to demand long term immigration relief and options for all.. 

See a list of previous legal challenges brought against DACA in Federal Courts compiled by MALDEF here.

New Court Filing Challenges Chad Wolf’s Appointment in Order to Preserve DACA

Immigrant youth filed an amended claim in federal court to challenge changes to the Deferred Action for Childhood Arrivals (DACA) program, arguing the changes were unlawfully implemented based on the illegitimate appointment of Acting Department of Homeland Security (DHS) Secretary Chad Wolf. The legal challenge not only calls out the Trump administration’s failure to abide by its own laws but could serve as a pathway to fully restore the DACA program.

The complaint filed on August 28, 2020, in the U.S. District Court for the Eastern District of New York challenges the recent changes the Trump administration made to the DACA program. The complaint adopts similar legal arguments used in a different lawsuit that challenged the appointment of USCIS Chief Ken Cuccinelli. In that case, a federal judge found Cuccinelli’s appointment unlawful and used it to strike down various policies issued during his tenure aimed at eroding the due process rights of immigrants, including directives that sped up asylum seekers’ initial screenings and then limited extensions of those hearings. 

“We are back in court because this is, yet again, the latest unlawful installment by the administration, and its latest assault on DACA is just as unlawful as the first,” Mayra Joachin, an attorney for the plaintiffs with the National Immigration Law Center, told Bloomberg.

The complaint centers on a July 28th memorandum issued by Wolf, which bars first-time applicants from obtaining DACA, requires annual renewal of work permits as opposed to every two years, and limits travel abroad under advanced parole. The complaint contends that the memorandum calling for all these changes should be invalidated because Wolf was unlawfully appointed and, therefore, lacked the authority to issue said memorandum. 

“The designation of Defendant Wolf as Acting DHS Secretary was made in contravention of the Appointments Clause of the U.S. Constitution, the Federal Vacancies Reform Act (“FVRA”) and the Homeland Security Act (“HSA”). As a result, Defendant Wolf lacks the authority to revoke critical components to the DACA program purportedly made through the Wolf Memorandum,” the complaint states.

Earlier this month, the Government Accountability Office determined that the previous head of DHS, Kevin McAleenan, had been improperly designed as the Acting DHS Secretary, and thus, appointments made by McAleenan would also be deemed invalid, including Wolf and Cuccinelli.  

Immigrant Legal Defense and Immigrant Defense Advocates put forth a similar argument when challenging the validity of 15-year contracts signed by ICE in order to expand immigration detention in California, noting that Wolf’s illegitimate appointment should place those contracts under legal jeopardy.

The Wolf complaint is the latest development in an ongoing battle between civil rights organizations and advocates alleging clear violations of law and procedure in the Trump administration's incessant war against immigrants. 

In this case, the complaint may serve to invalidate Wolf’s July 28th memorandum. If successful, it could lead to a general reinstatement of the DACA program in full, at least for a period of time.

NILC represents the group of young visionary people who filed the complaint, Make the Road New York, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School.