DACA application
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Explaining the impacts of the latest court rulings on the DACA program

Written by Catherine Magennis, Esq., Senior Associate Attorney.

The Deferred Action for Childhood Arrivals (DACA) program has been reinstated in its entirety.

A federal judge ruled last month that the Trump administration must restore all aspects of DACA, invalidating a recent memo published by the government aimed at scaling back the program.

Below is an in-depth analysis of the history of DACA, the Trump administration’s attempt to end the program, the impact of various court rulings, the future for recipients under President-Elect Joe Biden and more.

History of program

The Deferred Action for Childhood Arrivals (DACA) program was first implemented via executive action by President Barack Obama shortly after the 2010-11 version of the Development, Relief, and Education for Alien Minors (DREAM) Act failed to pass in the United States Senate.

The program has offered temporary protection to almost 800,000 young people since it initially took effect on June 15, 2012. DACA recipients can receive work authorization in the United States; enroll at colleges and universities; and obtain a driver’s license. However, DACA does not provide recipients a legal pathway to citizenship.

“I believe that it’s the right thing to do because I’ve been with groups of young people who work so hard and speak with so much heart about what’s best in America, even though I knew some of them must have lived under the fear of deportation,” Obama said in remarks the day DACA was implemented. “I know some have come forward, at great risks to themselves and their futures, in hopes it would spur the rest of us to live up to our own most cherished values.

“I’ve seen the stories of Americans in schools and churches and communities across the country who stood up for them and rallied behind them, and pushed us to give them a better path and freedom from fear — because we are a better nation than one that expels innocent young kids.”

Trump administration’s attempt to end DACA

President Donald Trump discussed his plan to terminate the DACA program multiple times during his campaign for the White House in 2016.

He followed through on that pledge shortly after he was inaugurated as president.

The Trump administration issued a memo in early September 2017 that completely rescinded the program, claiming that DACA was “effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date. … Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”

That September 2017 Executive Memo was subsequently enjoined by multiple federal judges. The Trump administration’s attempt to repeal the program has ultimately, thus far, been unsuccessful because of various other legal challenges and court rulings.

Court rulings

The Supreme Court, in a 5-4 decision in June 2020, blocked the Trump administration’s attempt to end DACA, finding that the government did not provide sufficient justification for terminating the program.

“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,’” Chief Justice John Roberts wrote in the majority opinion. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.

“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

In effect, the Supreme Court ruled that the specific government action in terminating the program was impermissible, without directly ruling on the overarching constitutionality of the DACA program or the scope of executive authority.

Acting DHS Secretary Chad Wolf then published a memo shortly after that Supreme Court ruling outlining new guidelines directing the government to reject new initial requests for DACA; to limit renewals for current DACA beneficiaries to one year rather than the original two; and to reject applications for advance parole in almost all circumstances.

However, a U.S. District Judge from the United States District Court for the Eastern District of New York, in a ruling in early December 2020, directed the administration to restore DACA to its original form, that is, in its state prior to the “attempted rescission” of the program by the Trump administration.

The judge found that Wolf did not have “lawful authority to serve” in his position under the Administrative Procedure Act.  As a result, the judge concluded that Wolf did not have the corresponding authority to lawfully issue the memo regarding DACA and vacated it.

“The court takes seriously any collateral consequence that may arise as a result of the unlawful Wolf Memorandum,” the judge wrote in his December ruling. He continued: “The court reserves the right to impose further remedies if they become necessary.”

The judge also ordered the administration to post a public notice on its website acknowledging that it is “accepting first-time requests for consideration of deferred action under DACA, renewal requests and advance parole requests” within three calendar days of the order; to continue discussions with interested parties in “regard to notices to be mailed to individual class members;” and to “produce a status report on the DACA program to the court” by early January.

The judge’s ruling, therefore, enables those who have not applied for the DACA program during the Trump administration’s tenure to do so. The judge’s directive also clears the way for DACA recipients to receive full, two-year status renewals and travel outside of the United States by requesting advanced parole via the Form I-131, Application for Travel Document.

The Trump administration is complying with the court order and does not appear to be poised to challenge it in court over the remaining weeks in its tenure. In that regard, after four years of persistent effort to dismantle the DACA program, as the Trump administration concludes, the program is essentially intact in the same form as when Trump assumed the presidency.

Eligibility

To be eligible to apply for DACA status one must:

  • Have been under the age of 31 as of June 15, 2012
  • Have come to the United States before reaching their 16th birthday
  • Have continuously resided in the U.S. since June 15, 2007, up to the present time
  • Have been physically present in the U.S. on June 15, 2012, as well as when the request for DACA status was made
  • Have entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012
  • Either currently be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate or be an honorably discharged veteran of the Coast Guard or armed forces of the United States
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors and do not otherwise pose a threat to national security or public safety

Individuals considering applying for the DACA program should consult with experienced immigration counsel to determine if they meet the eligibility requirements.

One-year DACA renewal recipients

Any DACA recipient that was impacted by the Chad Wolf memo that limited DACA renewal grants and work authorization (EAD) to one year has also received relief through the December 2020 Batalla Vidal et al. v. Nielsen et al., case number 1:16-cv-04756, and State of New York et al. v. Trump et al., case number 1:17-cv-05228 in the U.S. District Court for the Eastern District of New York ruling.

All work authorizations and DACA grants that were issued for one year have been automatically extended to two-years. The court ordered that the government mail a I-797 Extension Notice to the individuals who received a one-year work authorization card (EAD). USCIS is required to mail those impacted individuals a notice by January 8, 2021. This notice can be used in conjunction with their one-year EAD as proof of two years of work authorization. USCIS has issued guidance to employers.

Also, USCIS is required to mail a new EAD for the second year of work authorization at least 30 days before the current one-year EAD expires.

How to apply for DACA status

In order to apply for DACA, an individual must complete an application for Consideration of Deferred Action for Childhood Arrivals.

To be eligible for work authorization, the applicant will also need to submit a separate application with the required worksheet form. The filing fees are currently $495.

There are fee exemptions available in very limited circumstances. Individuals applying for initial DACA applications for the first time should consult with an experienced immigration attorney.

Travel permission or advance parole applications for DACA

Travel permission requests (Advance Parole) are now available again to DACA recipients according to the terms that were in place before President Trump’s attempt to end the program on September 5, 2017.

DACA holders interested in applying for Advance Parole must prove that their travel is for “humanitarian, education or employment” purposes. For example: visiting a sick family member can qualify as a humanitarian reason; participating in a study abroad program is a valid educational reason; needing to complete an overseas assignment for a job is a valid employment reason.

Those paroled into the United States after travel abroad may be eligible to adjust status (i.e. apply for a green card/lawful permanent resident status) and have a path to citizenship under limited circumstances. Individuals considering applying for advance parole or traveling outside the United States are strongly recommended to first consult with an experienced immigration attorney.

Future of DACA under President-Elect Joe Biden

Biden was a part of the Obama administration that first introduced the Deferred Action for Childhood Arrivals program via executive order in 2012 and he has promised to protect DACA recipients, known as “Dreamers,” and their families while in the White House.

“Biden will remove the uncertainty for Dreamers by reinstating the DACA program, and he will explore all legal options to protect their families from inhumane separation,” the Biden campaign’s immigration platform reads.

He has also pledged to expand the program in certain ways.

“Biden will ensure Dreamers are eligible for federal student aid (loans, Pell grants) and are included in his proposals to provide access to community college without debt and invest in HBCU/Hispanic Serving Institution/Minority Serving Institutions, which will help Dreamers contribute even more to our economy,” the campaign platform reads.

Moreover, Biden has vowed to work with Congress to create a roadmap to citizenship for Dreamers and their parents as part of a more comprehensive approach to immigration reform. Prospects for future legislation, however, are uncertain.  The last major immigration reform was nearly 35 years ago, in the Reagan Administration, when Congress passed, and the president signed into law, the Immigration Reform and Control Act of 1986.

Since then, despite a vast amount of rhetoric across the political spectrum, and despite consensus in many key areas, legislative immigration reform has been elusive, with the debate often highly charged and politically divisive.

With a global pandemic still ravaging the U.S. economy, it is unlikely that comprehensive immigration reform will be a near-term priority.


As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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