DACA in the Court
DACA Court Decision September 2023New!
On September 13, 2023, District Court Judge Hanen again ruled that DACA is unlawful. This comes as no surprise, as he ruled in a similar way in June of 2021. This is another destabilizing event for the DACA community, and we understand the uncertainty and anxiety it may bring to all DACA recipients.
IMPORTANT: Although this is a negative ruling, DACA renewals and Advance Parole applications continue to be accepted and processed. Initial DACA applications, unfortunately, are still not being processed.
Potential Next Steps
The case is expected to be appealed to the Fifth Circuit Court of Appeals, which will likely hear the case sometime in 2024. There is a high probability, based on their previous rulings, that the Fifth Circuit will rule that DACA is unlawful. There is a chance that they could remove the stay on DACA renewals in their decision, meaning DACA renewals and Advance Parole would stop. However the Fifth Circuit rules, the case will likely be appealed up to the Supreme Court.
If the Supreme Court decides to take on this case, the Court will likely hear this case in the next two years. Due to the litigation process, there is a higher probability that the case will be heard in the 2024-2025 session, and then a decision from the Court issued in the Spring of 2025.
All of these potential next steps are legal experts’ best predictions of how litigation could play out, and are not guaranteed outcomes or dates.
What this means for DACA recipients
It’s important to remember that Judge Hanen cannot and did not take away DACA renewals for current DACA recipients —only the appeals court, or later, the Supreme Court, can change that. That means that, despite Judge Hanen ruling DACA unlawful, the following remains the same:
- DACA renewals are still open. This could change, which is why we urge you to renew as soon as possible while the courts are still allowing these applications to be processed.
- First-time DACA applications continue to stay in limbo and will not be processed.
- Advance parole for current DACA recipients is still available.
We understand that this rollercoaster of court cases is exhausting and unfair. We stand with you, and we will never stop fighting to protect our communities. Our communities deserve to be safe; we deserve to be free from the extreme stress and fear that comes with the threat of deportation and to continue planning our lives with certainty and stability.
Timeline: Texas v. United States
July 16, 2021: Judge Hanen from 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.
September 2021: The Biden administration appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.
July 6, 2022: Oral argument took place at the Fifth Circuit Court of Appeals for the case.
August 30, 2022: The Biden Administration published their final rule on DACA.
October 5, 2022: The Fifth Circuit Court of Appeals published a decision on the case, affirming that DACA is illegal and sending the case back down to the Texas District Court.
October 31, 2022: The Biden Administration’s DACA regulations went into effect.
June 1, 2023: Judge Hanen from the U.S. District Court for the Southern District of Texas heard oral arguments again for the DACA case, this time focusing on the Biden Administration’s DACA rule.
September 13, 2023: Judge Hanen ruled DACA unlawful once again.
FAQ
First-time applicants
First-time applications are currently accepted by USCIS, but they are still prohibited from processing the application under the Texas court order. As of June 1, 2023, we do not know if this will change.
See first-time DACA FAQs below
Current DACA recipients
Renewals are allowed while the case is being decided in the U.S. District Court by Judge Hanen. Remember that he cannot take away DACA for current DACA recipients —only the appeals court, or later, the Supreme Court, can change that.
- 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
AP continues open while renewals are still open.
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. Find out more about advance parole on our guide and always consult with an immigration lawyer before traveling outside the United States.
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.
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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 September 13, 2023 court order has not impacted the filing process for DACA renewals, but this could change at the appeals court or at the Supreme Court.
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. This may change in the future once the case returns to the appeals court, or later, the Supreme Court can change that.
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.
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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