The Department of Homeland Security, or DHS, has released a long-awaited final rule codifying Deferred Action for Childhood Arrivals, or DACA. The new regulations, which will take effect on Oct. 31, 2022, rescind the June 15, 2012, Napolitano memo, but maintain the existing DACA eligibility guidelines and largely preserve the policies that have been in place since the program’s beginning.

Citing the January 2021 Biden directive to “preserve and fortify” DACA, DHS has decided against making any changes that would expand eligibility for the program. Under the new rule, however, some important changes have been made to the procedure for DACA terminations. A departure from the United States without advance parole will not automatically result in DACA termination. Instead, United States Citizenship and Immigration Services, or USCIS, will exercise discretion in deciding whether termination is warranted in such a case. Furthermore, before any discretionary termination of DACA, unless the recipient has been convicted of an offense of egregious public safety or national security, USCIS will first issue a Notice of Intent to Terminate and provide an opportunity to respond. In addition, the new rule clarifies that DHS will not automatically terminate DACA simply because a Notice to Appear has been issued or filed.

Unfortunately, the new rule will not change the status quo for initial DACA applicants. On July 16, 2021, the U.S. District Court for the Southern District of Texas in State of Texas, et al., v. The United States of America, et al. ruled that DACA is unlawful and vacated the 2012 memorandum creating DACA. This order and Judge Hanen’s nationwide injunction continue to prevent USCIS from approving initial DACA requests. For now, USCIS continues to adjudicate renewal requests, but cannot approve initial applications and accompanying requests for employment authorization, including approximately 80,000 requests that were pending on the date of the injunction. The continued uncertainty has left practitioners and otherwise eligible DACA clients in a state of limbo and frustration.

The Texas v. U.S. injunction was appealed, and on July 6, 2022, a three-judge panel in the Fifth Circuit Court of Appeals held oral arguments. A ruling is expected in the coming weeks or months, but there is no specific deadline for the court’s decision. Regardless of whether the panel rules that the original 2012 DACA program is legal or affirms Judge Hanen’s ruling that it is unlawful, either side is likely to challenge the decision by requesting an en banc hearing before the entire Fifth Circuit and/or appealing to the U.S. Supreme Court. In other words, a Fifth Circuit affirmation that DACA is unlawful will not necessarily mean an immediate end to the program. It is not clear at this time how the final DACA regulations will affect any future ruling on the legality of Judge Hanen’s injunction.

In a disappointing decision issued on Aug. 3, 2022, in Batalla Vidal et al. v. Mayorkas, et al., the District Court for the Eastern District of New York denied the plaintiffs’ motion for limited relief. On April 4, 2022, the plaintiffs had asked the court to provide interim relief to the 80,000 individuals whose first-time DACA requests have remained pending at USCIS since Judge Hanen’s injunction. Plaintiffs requested that the court modify its order to allow USCIS to: (1) process first-time applications up until the point of adjudication; (2) process requests from those whose DACA expired more than a year before application and treat them as renewal requests rather than initial requests; and/or (3) issue an alternative form of prosecutorial discretion and employment authorization to initial DACA applicants while they wait for a resolution to the Texas v. U.S. case. The district court denied the plaintiffs’ motion in its entirety, leaving the status quo unchanged for pending initial applicants and former DACA recipients whose DACA has lapsed for over one year. More details are found on the website of the National Immigration Law Center.

CLINIC continues to monitor DACA-related developments and will post any updates to our DACA issues page. In the meantime, we continue to push Congress to implement a lasting legislative solution that provides a path to permanent residence for DACA recipients and applicants.