DACA Reinstated Following Court Order

gavel on desk

New Applications and 2-Year Permit Renewals Available

As of December 7, 2020, the Department of Homeland Security (DHS) has been ordered to fully restore Deferred Action for Childhood Arrivals (DACA) to its status prior to a Trump administration rescinding effort that began in September of 2017. U.S. District Judge Nicholas G. Garaufis issued the decision, and DHS has thus far acquiesced, posting a public notice pursuant to the order that announces the reopening of new applications for the DACA program.

DACA, an initiative meant to shield undocumented immigrants who arrived to the United States as children from deportation efforts, has been the subject of numerous legal challenges and partisan battles. The program is especially vulnerable due to its being built on executive action versus a more permanent legislative solution ratified by Congress.

The Trump administration initially sought to bring an end to the program in late 2017, making good on a campaign promise to reduce immigration. This “sunsetting” effort resulted in the stoppage of all processing of new applications, shutting out potentially hundreds of thousands of immigrants who would have otherwise been eligible or DACA status. The attempted dismantling was predictably met with numerous legal objections, culminating in a Supreme Court hearing.

The Supreme Court ultimately ruled in a 5-4 decision that President Trump’s termination of the DACA program was unlawful, citing the “arbitrary and capricious” nature of the attempt. Conservative-leaning Chief Justice John Roberts joined his liberal colleagues in the decision, but the opinion heavily suggested that the Trump administration could likely successfully end the program if they attempted to do so through a more legally acceptable strategy.

Despite this ruling and an ordered reinstatement, the Trump administration continued to put up stiff resistance and ordered new restrictions. Acting Homeland Security Secretary Chad Wolf, who had not been confirmed by the Senate, issued a memo in July of 2020 that claimed DHS would “thoughtfully consider” the future of DACA following the Supreme Court loss. As part of this “consideration,” United States Citizenship and Immigration Services (USCIS) announced it would continue to not accept new DACA applications or advanced parole requests. Work permits, which were previously issued for 2-year terms, would now be reduced to a term of 1 year.

These actions, seemingly in defiance of the Supreme Court decision, contributed to the legal action that ultimately resulted in Judge Garaufis’s December decision ordering the full reinstatement of the program. The court ruled that because Chad Wolf had not been properly or lawfully assumed his position, his July memo was null and void.

As a result of this recent court decision, the following DACA program elements have been restored:

  • USCIS is now accepting new applications for DACA enrollment, including from those who have never applied before
  • 2-Year work authorizations will now be issued
  • Those who were granted 1-year work authorizations in the interim period will have those permits extended to 2 years
  • Advanced Paroles will now be granted for international travel

The ruling represents a substantial win for DACA beneficiaries, eligible immigrants, and immigration advocates. However, many expressed tempered enthusiasm. DACA remains the subject of several ongoing and pending legal challenges, including some that could conceivably reach the newly restructured Supreme Court. Conservative Justice Amy Coney Barrett has since replaced liberal Justice Ruth Bader Ginsburg, meaning it is possible that the Court could rule differently should they face a new case involving DACA’s legality. As such, DACA remains fundamentally vulnerable.

President Elect Joe Biden has publicly supported the DACA program and has pledged to restore it in its entirety soon after taking office. His support may not be sufficient in protecting DACA, however. Truly protecting program participants would require a permanent legislative solution, a goal that may be unattainable should the Republican Party retain control of the U.S. Senate.

In the meantime, many existing beneficiaries can now obtain the full 2-year terms of deferred action and work authorization. Newly eligible immigrants can also potentially be granted benefits for the first time.

Eligibility for DACA

The DACA program has narrow requirements defining who is and is not eligible. USCIS will heavily scrutinize new applications and renewals, so it is important to confirm you meet all conditions.

In order to successfully apply for DACA status, an immigrant must meet the following requirements:

  • You must have been under the age of 31 as of June 15, 2012;
  • You must have arrived in the United States prior to turning 16;
  • You must have lived continuously (i.e. maintained primary residence) in the U.S. since June 15, 2007, up to the present time;
  • You must have been physically present in the United States on June 15, 2012 and have not left the United States since August 15, 2012 without advance parole;
  • You must have been undocumented on June 15, 2012. This means you must either have entered the country as an undocumented immigrant prior to that date or had legal status that expired prior to that date;
  • You must continue to be undocumented at the time of submitting your application;
  • You must be at least 15 years-old at the time of submitting your application, except under certain extenuating circumstances;
  • You must have graduated high school, received your general education development (GED) certificate, be currently in school at the time of submitting your application, or be an honorably discharged member of the U.S. military;
  • You must not have a disqualifying criminal record. Disqualifying factors include a conviction for any felony offense, a conviction for a significant misdemeanor, or three or more convictions for any combination of misdemeanors;
  • You must not pose threat to the country’s national security or public safety.

We Can Help You Apply for or Renew DACA Benefits

Whether you are a first-time applicant or are seeking to renew your deferred action, our team at Salas Law can help you pursue DACA status. Our immigration attorney has over 15 years of experience helping clients manage complex immigration matters and represent them in communications with USCIS. We are familiar with all of the intricacies of the DACA program and can help determine if you are eligible for benefits. We can then help you apply and work to ensure your rights are honored and protected.

If you have questions about DACA or need help applying, do not wait to call (512) 253-4202 or contact us online to schedule an initial consultation. We offer our legal services in both English and Spanish.

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