DACA in the Courts 2022

DACA in the Courts July 2022  New!

Oral argument in Texas v. United States, the case challenging the DACA program, will be heard in the U.S. Court of Appeals for the Fifth Circuit on July 6, 2022. This case was previously before the U.S. District Court for the Southern District of Texas. Last summer, that court declared DACA unlawful. We will not know the decision from the appeals court immediately. It can take weeks or months for a court to rule after the argument. Right now, it’s important to know that:

  • DACA renewals are still open
  • First-time DACA applications will not be processed
  • Advance parole for current DACA recipients is still available

This has been an exhausting and unfair journey for you and your families. DACA is not enough and we are long overdue for a change in our immigration system. We’re here for you and will provide the most up-to-date information so that you are empowered to make the best decisions.

Overview

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:

First-Time Requests (Initials)

An initial request for DACA includes:

  • A first-time request for DACA;
  • A request filed by an individual who was previously granted DACA but did not request renewal within one year of the expiration; or
  • A request filed by an individual whose most recent DACA grant was terminated.

USCIS is not permitted to approve initial DACA requests while the court order from the Southern District of Texas (July 2021) remains in effect. If you have an initial DACA request pending with USCIS, your request will remain on hold in compliance with the court order.

At this time, USCIS is holding cases, rather than rejecting or closing them. While USCIS holds these cases, they will remain pending. Because these cases will remain on hold while the court order is in effect, USCIS will not issue refunds for initial DACA requests that remain on hold while the court order is in effect.

USCIS may issue further guidance on this subject as the Texas v. United States case continues.

USCIS will accept initial DACA requests, but will not process them. If you file an initial DACA request with USCIS, you will receive a receipt notice, and USCIS will process your payment. However, USCIS will not make a decision on your request while the Texas v. United States court order remains in effect. We don’t know whether first-time applications will be processed in the near future or what USCIS will do with them after a final decision in Texas v. United States.

President Biden and DHS have made it clear that DACA recipients are not a priority for deportation. Even Judge Hanen said in his order that this court decision does “not require DHS or Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual.”
We recommend that you consult an immigration attorney or accredited representative if you believe you fall under an enforcement and removal priority category.
We will continue to fight in Congress for a pathway to citizenship for immigrants.

Renewals

Yes. You can still renew your DACA. If this changes for any reason, USCIS will publish updated information to its site.

USCIS strongly encourages DACA recipients to file their renewal requests 120 to 150 days (four to five months) before the expiration of their current DACA validity period.
However, if you file before then, USCIS will accept your filing for processing, even if it holds it until 150 days prior to the date of expiration of your current DACA validity.

USCIS will not reject a renewal filing before the 150-day mark, but they may wait until closer to the applicant’s expiration date to begin processing the request. There are some individuals who have had their DACA renewals processed before hitting 150 days, but this is not the norm for USCIS.

At this time, the July 2021 court order has not impacted the filing process for DACA renewals, but this could change as Texas v. United States makes its way through the courts.

Yes, if your DACA has expired for less than a year, we encourage you to consider filing the renewal ASAP. If it’s been longer than a year, see the next question.

  • You will need to submit an initial (first-time) request for DACA if you let your DACA expire for more than 1 year.
  • USCIS can accept initial DACA requests, but it is prohibited from processing them while the Texas federal court order remains in effect.
  • You will be issued a receipt notice, and your payment will be accepted. However, the request will not be further processed, in compliance with the July 2021 court order.

Yes, USCIS will continue to process DACA renewal requests.
However, if your DACA expires before USCIS approves your renewal request, you do not have DACA or employment authorization for the period between the expiration of your prior DACA and the start of your new period of DACA.

USCIS’ goal is to process DACA renewal requests generally within 120 days. You may submit an inquiry about the status of your renewal request after it has been pending for more than 105 days. To submit an inquiry online, please visit egov.uscis.gov/e-request.

Please Note: Factors that may affect the timely processing of your DACA renewal request include, but are not limited to:

  • Failure to appear for a scheduled biometrics appointment to obtain fingerprints and photographs. No-shows or rescheduling appointments will require additional processing time;
  • Issues of national security, criminality or public safety discovered during the background check process that require further vetting;
  • Issues of travel abroad that need additional evidence/clarification;
  • Name/date of birth discrepancies that may require additional evidence/clarification; or
  • The renewal submission was incomplete or contained evidence that suggests a requestor may not satisfy the DACA renewal guidelines, and USCIS must send a request for additional evidence or explanation.

Advance Parole

Yes. USCIS will continue to accept and process applications for advance parole filed by DACA recipients.

Yes, USCIS will continue processing advance parole applications for DACA recipients. Though they have been known to take up to 6 months to process non-emergency cases.

If your application for advance parole has been approved, you can still travel for the requested dates. If the Fifth Circuit were to order USCIS to discontinue DACA renewals, advance parole would also be made unavailable to DACA recipients going forward.

Please note, all individuals returning to the United States are still subject to immigration inspection at a port of entry. We encourage you to consult with an immigration attorney or DOJ-accredited representative before traveling abroad.

Yes, if you currently have DACA and are abroad using advance parole, you may return to the United States. using your advance parole. You may wish to return to the United States promptly.

Please note, all individuals returning to the United States are still subject to immigration inspection at a port of entry.

If you currently have DACA, you may apply for advance parole. If you are experiencing an extremely urgent situation, you may request an emergency advance parole appointment at your local field office through the USCIS Contact Center. You should bring the following items to your appointment:

  • A completed and signed Form I-131, Application for Travel Document;
  • The correct Form I-131 filing fee;
  • Evidence to support the emergency request (for example, medical documentation, death certificate, etc.); and
  • Two passport-style photos.

For more information, please see the DACA advance parole page.

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