DACA LIVES! FOR NOW ANYWAY...

On January 9, 2018, U.S. District Court Judge William Alsup in San Francisco issued a decision that partially revived DACA, a program established by a 2012 executive order by President Obama and rescinded on September 5, 2017 by President Trump.  DACA, or Deferred Action for Childhood Arrivals, offers an employment authorization document and protection from deportation to undocumented immigrants who were brought to the U.S. as children and meet a variety of other eligibility criteria. Participants in the program are often referred to as Dreamers as their eligibility for the program demonstrates a continued commitment to pursuing the American Dream. These Dreamers, nearly 800,000 in total since 2012, are young people who are educated in the U.S., do not have significant criminal convictions, and for the most know no other country but the U.S.  

President Trump's rescission of the program on September 5, 2017 sparked a national debate about the program, including how and whether to create a long-term solution for Dreamers. According to recent polls from Pew Research Center, 74% of Americans favor granting permanent legal status to immigrants brought to the U.S. illegally when they were children. Despite this clear majority opinion favoring legal status for Dreamers, Congress has thus far been unable to agree on a solution. 

President Trump's rescission announcement allowed for a period of DACA renewals from September 5, 2017 to October 5, 2017, after which no further renewal applications would be accepted. While the future of DACA and Dreamers remains uncertain at this point, Judge Alsup's January 9, 2018 decision has at least reopened the possibility for submitting DACA renewal applications, thereby allowing Dreamers to extend their work authorization while Congress continues to negotiate a long-term solution. The judge's decision resulted in USCIS resuming acceptance of DACA renewal applications. The decision however, does not require the administration to accept initial DACA applications for individuals who have never been granted DACA before. 

On January 13, 2018, USCIS issued an update stating that it had resumed accepting DACA renewal applications and offering guidance on submission of renewal applications in the wake of the federal court decision.

Below are some guidelines from USCIS regarding DACA applications following the January 9th federal court decision:

  • USCIS is not accepting initial application from individuals who have never before been granted deferred action under the DACA.
  • USCIS is not accepting or approving advance parole requests from DACA recipients.
  • If your DACA expired on or after September 5, 2016, you may still file a renewal application. On your application you should list the date that your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
  • If you were previously granted DACA but it expired or was terminated prior ot September 5, 2016, you cannot request a renewal but may file a new initial DACA request. You should list the date your prior DACA expired or was terminated. 

If your circumstances have changed since your last DACA application, including any criminal convictions, we do advise that you consult with an immigration attorney prior to filing any application. 

While renewal applications are now being accepted as a result of the federal court decision, the window for such renewals may be short-lived as the Trump administration has appealed the federal judge's decision and asked the U.S. Supreme Court to expedite the appeal. On January 22, 2018, the Supreme Court agreed to accelerate the case, bypassing the normal appeal route. Normally, such an appeal would first pass through the Ninth Circuit Court of Appeals before making its way to the U.S. Supreme Court. In this case, the Supreme Court's decision to accelerate the appeal means that supporters of the program will have until February 2, 2018 to file arguments in support of the federal court decision. In turn the Supreme Court may then make a decision on whether to review the federal court decision as early as February 16, 2018.  If the justices agree to hear the case, arguments may be heard this spring with a decision to follow in late June. 

The next few weeks will likely bring further developments regarding the future of DACA as both Congress and the courts grapple with the issues.