The Obama administration created the Deferred Action for Childhood Arrivals (“DACA”) program through an Executive Order in 2012 and the Trump Administration terminated DACA in 2017. On June 18, 2020, the Supreme Court held that the Trump Administration’s termination of DACA violated the Administrative Procedures Act. The termination was deemed to be in error because the Department of Homeland Security did not take into account the reliance interests of the hundreds of thousands of Dreamers who have obtained employment, pursued educational programs and military service, bought homes and had children in the United States under the protection of this program. The termination additionally did not take into account lesser measures the Trump Administration could have taken to terminate the program, for instance by terminating the issuance of work permits but continuing to authorize prosecutorial discretion to prevent the deportation of Dreamers.
On July 28, 2020, the Department of Homeland Security (“DHS”) issued a statement indicating that while they looked at terminating DACA, they would limit grants of Deferred Action to one-year increments and reject any initial DACA applications. USCIS issued a memo on August 21, 2020, implementing this guidance. On December 4, 2020, a federal judge found that the head of DHS did not have the ability to issue this memo limiting DACA because he was serving after the deadline for his appointment to be confirmed by the Senate. The judge ordered United States Citizenship and Immigration Services (“USCIS”) to begin accepting DACA applications pursuant to the Obama Administration’s 2012 memo.
On July 16, 2021, Texas District Court Judge Hanen issued a decision declaring the DACA program unlawful. As part of his decision, Judge Hanen ordered USCIS to stop processing initial DACA applications. Although Judge Hanen is a judge in Texas, his order applies nationwide. On July 27, 2021, USCIS clarified that a request filed by an individual who was previously granted DACA but did not request renewal within one year of its expiration is considered an “initial” request.
This means all initial DACA applications that were not granted on or before July 16, 2021 will not be processed or approved while his order is in effect. Similarly, USCIS further clarified that if it has been more than one year since someone’s last grant of DACA expired, that request is considered and initial request and USCIS can accept it, but is prohibited from approving it while the July 16, 2021 court order remains in effect.
The Department of Justice (“DOJ”) intends to appeal this order and on September 28, 2021, DHS published proposed rule on DACA to try to preserve DACA. The proposed rule is not in effect yet, and any changes as a result of the proposed rule will likely not happen for at least a few months. The proposed rule is available here: https://public-inspection.federalregister.gov/2021-20898.pdf. These actions may place a pause on Judge Hanen’s order, but it is too soon to tell if these actions will be successful. Until then, USCIS will comply with Judge Hanen’s order and stop approving any pending initial DACA requests.
For more information on the history of the DACA litigation, please visit the National Immigration Law Center’s webpage.