Texas Judge Blocks Approval of New DACA Applications
In a long-anticipated decision, a federal judge in the Southern District of Texas ruled on July 16, 2021 that Deferred Action for Childhood Arrivals (DACA) is unlawful under its current terms. The court granted Texas’ request for a permanent injunction and vacated the 2012 Memorandum that created DACA. The permanent injunction order may be found here.
DHS is now enjoined from granting DACA to new applicants as of July 16, 2021. U.S. Citizenship and Immigration Services (USCIS) may still accept first-time DACA applications but is prohibited from approving any initial applications and accompanying applications for employment authorization, including those that were pending on July 16, 2021. In a statement issued on July 19, 2021, the USCIS Acting Director confirmed that current DACA recipients may continue to apply for and be granted advance parole.
USCIS updated its DACA Frequently Asked Questions on July 28, 2021. The new guidance clarifies USCIS’s position on several questions, including:
- Initial DACA applications and associated applications for work authorization that were pending on or after July 16, 2021 will remain on hold in compliance with the order. Because these applications will remain pending, USCIS will not refund filing fees.
- Someone who was previously granted DACA but did not request renewal within one year of the expiration cannot apply for renewal. Under the previous policy, someone in this situation could apply for DACA by submitting an initial application. After the Texas decision, USCIS is prohibited from approving these applications.
- USCIS has cancelled all biometrics appointments for initial applications. Renewal applicants and applicants for advance parole should attend scheduled biometrics appointments.
The Department of Justice intends to appeal the court’s decision. It is likely to go to the Fifth Circuit Court of Appeals and then to the U.S. Supreme Court. In the meantime, DHS has announced that it will comply with the Texas injunction, but the agency also reiterated its intent to engage in a rulemaking process to preserve and fortify DACA. While a final regulation on DACA could resolve some of the APA concerns raised in the Texas decision, only Congress can create a pathway to citizenship for DACA recipients and Dreamers.