Are clients asking about the latest news regarding DACA or whether there are any changes on the horizon that would permit U.S. Citizenship and Immigration Services, or USCIS, to resume approving first-time applications?

Last July, 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 Andrew S. 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 July 16, 2021. The continued uncertainty has left practitioners and otherwise eligible DACA clients in a state of limbo and frustration.

On July 6, 2022, a three-judge panel in the Fifth Circuit Court of Appeals held oral arguments in the appeal of the Texas v. U.S. injunction. 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 or appealing to the U.S. Supreme Court. A Fifth Circuit ruling that DACA is unlawful will not necessarily mean an immediate end to DACA.

In the meantime, there is hope that the proposed DHS regulations on DACA that were published last fall might resolve some of the legal issues in Texas v. U.S. once those regulations become final. The Office of Management and Budget has indicated that the final rule should be expected in August. Unfortunately, there is no guarantee that the rule will overcome the substantive concerns with DACA in Judge Hanen’s decision in order to permit USCIS to resume approving initial DACA applications. For more details regarding the litigation and possible outcomes, consult these articles by the National Immigration Forum and MALDEF.

Another recent development involves the Batalla Vidal et al. v. Mayorkas, et al. lawsuit in the District Court for the Eastern District of New York. On April 4, 2022, the plaintiffs 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 July 2021 injunction. Plaintiffs have 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 New York court held oral arguments on July 7, 2022, and could issue a ruling at any time. More details can be found on the website of the National Immigration Law Center.

CLINIC continues to monitor DACA-related developments and will post any updates to https://cliniclegal.org/issues/deferred-action-childhood-arrivals-daca. In the meantime, we must continue to ask Congress to implement a lasting legislative solution that provides a path to permanent residence for DACA recipients and applicants.