Yesterday a court ordered that the Trump Administration must partially reinstitute the Deferred Action for Childhood Arrivals (DACA) program. Here is an explanation of what that court action means for you if you are in the DACA program.
The federal district court that issued the order is located in San Francisco. (That is within the Ninth Federal Circuit, which covers many western states). Although the order was issued by that local court, the order has an impact nationwide. That means even if you are in New York, Florida or Texas (etc.), the court order applies to you just as if you were in California.
The court has ordered that the Trump administration “maintain the DACA program on a nationwide basis.” Prior to today, the administration planned to end the program effective March 5, 2018. USCIS was no longer accepting new DACA applications, nor was it accepting DACA renewal applications.
The court has ordered that DACA renewal applications must now be accepted. However, USCIS is not required to accept DACA applications from those who had not previously been enrolled in the program.
The court also specified that those in the DACA program may be denied reentry to the U.S. if they leave. Previously, those in the DACA program could apply for “advance parole” to leave the U.S. for a short period and then return. That sometimes opened up important immigration strategies, such as marriage based “adjustment” (green card) applications.
Some immigration advocacy organizations are advising individuals against filing DACA renewal applications at this time. They advise that individuals should wait until USCIS announces further procedures. We do not agree. The court’s order makes clear that such a person may apply using the renewal procedures that were previously in place, specifically via the Form I-765 application. We do not see any legal advantage to postponing the application.
With that being said, it is important to understand that a higher court could reverse yesterday’s ruling. It is probably unlikely to be overturned by the Ninth Circuit Court of Appeals. But the Supreme Court itself could potentially step in. Notably, the Supreme Court did exactly that to come to the aid of the Trump Administration’s “travel ban.”
To emphasize that point again – this is only a temporary fix to the issue of DACA. The decision could be overturned at any time. Meanwhile, Congress seems yet again poised to potentially take action in passing a version of the Dream Act.
In the coming weeks – assuming the order remains in place – we should see a formal announcement from USCIS. That notice will indicate that DACA renewal applications are now accepted. It is possible that the announcement may contain some additional guidance on submitting renewal applications, though that would not necessarily be consistent with the court order.
Key take-homes about the DACA news:
- If you were previously enrolled in DACA, but your status has expired, the court says that you may now file a renewal application.
- Under the court’s order, you can file your renewal application following the same rules that were in place before Trump announced the end of the program.
- No one should file a renewal application without consulting a lawyer if they have had any encounter with law enforcement.
- If you have never been enrolled in DACA, the court order does not allow you to apply at this time.
- Those in the DACA program still should not leave the country.