What is the Current State of the DACA Program?

The Fifth Circuit Court of Appeals rendered a ruling on the validity of the 2012 DACA policy on October 05, 2022. Current DACA recipients may continue to benefit from DACA and renew their grants of DACA with work authorization while the case remains pending, pursuant to the Fifth Circuit’s decision to uphold the lower court’s stay; however, new applications are still not being processed. The Fifth Circuit concurred with the district court that the 2012 DACA memo was unlawfully issued without the requisite notice-and-comment procedures, and the 2012 DACA memo violates the Immigration and Nationality Act.

The Fifth Circuit held that the State of Texas had standing to file its action against DACA, because it found that the emergency Medicaid expenditures and public-school related costs for DACA recipients were “injuries” that the state suffered as a result. The 2022 DACA Rule was sent back to the district court for first consideration by the Fifth Circuit. The Texas district court will then consider the DACA Rule’s validity and render a ruling.

The Texas district court held a hearing on October 14, 2022. At the hearing, the Federal Government clarified that it will respect the district court’s injunction, prohibiting the consideration of first-time DACA applications, to apply to the DACA Rule, and that it will continue not to process requests for DACA from first-time applicants; this will include those whose DACA has lapsed for more than a year.

The Federal Government stated that they will gather and submit the necessary documents for the upcoming phase of the case (the “administrative record”), and they planned to have it done in three to four weeks. After reviewing the materials gathered by the Federal Government, the court requested the parties to suggest a schedule for briefing the remaining legal issues. The court reiterated that the federal government remains prohibited “from providing DACA status for any new applicants,” in its order.

On October 31, 2022, the 2012 DACA memo was rescinded and replaced by the DACA Rule. Fortunately, all current DACA grants and advance parole issued under the 2012 DACA memo will be upheld, and DACA holders continue to be eligible for advance parole. All DACA renewal applications will be now governed by the DACA Rule, and the DACA application will now charge a filing fee of $495.00, which includes biometrics and Employment Authorization Document (“EAD”) services. The DACA Rule also notes that expunged convictions, juvenile delinquency adjudications, and convictions under state laws for immigration-related offenses are not considered disqualifying convictions when applying for DACA.

Essentially, current DACA holders or those who had DACA within the last year may apply to have their work permits and DACA renewed. The federal government is continuing to accept first-time applications for DACA at this time; however, none will be processed or granted. It is important to know that anyone whose DACA expired more than one year ago is being treated as if it is a new application instead of a renewal.

If you have any questions regarding DACA, please contact Seri Han at shan@bhlfirm.com or contact our office at (201) 880-9374 to schedule a consultation.