On July 16, 2021, a judge sitting on the U.S. District Court for the Southern District of Texas ruled that DACA is unlawful. But the court allowed people with DACA to continue to renew. The court blocked USCIS from processing first-time DACA requests.
In September 2021, the Biden administration appealed the decision to the U.S. Court of Appeals for the Fifth Circuit. Oral argument is scheduled for July 6, 2022.
What is oral argument? Oral argument is when the parties to a case can further explain what they previously submitted in writing to the court. This is also a time when the judges who will decide the case can ask clarifying questions. For this upcoming hearing, three parties will argue before the court: the plaintiffs, the defendant, and the defendants-intervenors. The plaintiffs are the states challenging DACA. The defendant is the Biden administration. The defendants-intervenors are DACA recipients who want DACA to continue.
When will there be a decision for the Fifth Circuit Court of Appeals?
After oral argument ends, the judges assigned to the case will make a decision. A decision is expected anytime after oral argument. A decision could be issued within a few days of oral argument or up to several months after.
SUPREME COURT: If the Fifth Circuit Court of Appeals decides that the program should end, the Biden administration can request further review from the United States Supreme Court, which means that the Supreme Court could possibly rule on the case in 2023. We cannot rely on this Supreme Court to be in favor of DACA. This could mean an end to DACA, including renewals.
Pessimism around the Fifth Circuit Court of Appeals
In 2015, the Fifth Circuit Court of Appeals struck down a program that was similar to DACA, called DAPA. That program would have helped undocumented parents of American citizens and green card holders. Though we don’t know for certain what the court will decide, a positive outcome from the Fifth Circuit Court of Appeals seems unlikely.
First-time applicants with applications on hold at USCIS
There are close to 80,000 first-time DACA applications still on hold at USCIS. USCIS continues to receive first-time applications, but they do not process them; that is, they hold them but they can neither approve nor deny them. On July 7, 2022, there will be a hearing in a case called Batalla Vidal v. Mayorkas. In that hearing, DACA recipients and their lawyers have asked the U.S. District Court for the Eastern District of New York to order USCIS to process up to the point of decision the cases in limbo that were received between December 4, 2020 and July 16, 2021. Check out NILC’s comparison of the two cases here.
See first-time DACA FAQs below
Current DACA recipients
If the Fifth Circuit decides that the DACA program should end, it *might* also immediately end renewals for current DACA recipients. We don’t know exactly how or when the Fifth Circuit will rule, but we want you to be prepared for a negative ruling that could end renewals. We will do our best to provide updates in real-time and keep you informed.
See DACA renewal FAQs below
- My DACA expired less than a year ago
If your DACA expired under a year ago, USCIS will still process your renewal request as a renewal.
- My DACA expired over a year ago
If your DACA expired over a year ago, while you may still file for DACA, it will be considered an initial– or first-time– DACA request, and thus while USCIS will accept it, it may not process it under the Texas court order.
Advance parole – permission to travel abroad
DACA recipients that have a valid reason for traveling abroad can still request advance parole, or permission to travel abroad. A valid reason to travel abroad for a DACA recipient is an employment-based reason, a humanitarian reason, or an educational reason. Vacation is not a valid reason under the DACA rules. If the Fifth Circuit orders USCIS to discontinue DACA renewals, it will likely stop allowing the Biden administration to grant advance parole to DACA recipients. Find out more about advance parole on our guide and always consult with an immigration lawyer before traveling outside the United States.
See advance parole FAQs below
What can we do now?
It’s important that Congress pass permanent solutions for people with or without DACA, TPS holders, farmworkers, essential workers, and our family members.
Below we’ve adapted some USCIS FAQs on DACA: