DACA Declared Unlawful: What This Means for Eligible Dreamers

Posted by Ally Bolour | 12 Aug, 2021 | 0 Comments

DACA deferred action for childhood arrivals

A federal judge in Texas struck down Deferred Action for Childhood Arrivals (DACA) in July. Declaring the Obama-era immigration policy unlawful, the ruling blocks new applicants but allows existing DACA participants to maintain their protected status and renew their applications as needed. While the Biden administration immediately announced it will appeal, the ruling has created uncertainty for all DACA participants, their families, and their employers.

What is DACA?

DACA was created in 2012 through an executive action by President Barack Obama after Congress failed to pass the DREAM Act, a bill that would have provided a pathway to citizenship for undocumented immigrants who were brought to the United States as children, and who have come to be known as Dreamers. 

DACA allows certain Dreamers to apply for a two-year reprieve from deportation, which is renewable, as well as work permits and certain other benefits. DACA does not provide a path to citizenship. To be eligible for DACA, recipients must have arrived in the United States before turning 16, must have resided continuously in the country since June 15, 2007, and must have been under age 31 as of June 15, 2012 – the program’s creation date. Further, these individuals must be currently enrolled in school, hold a high school diploma or GED, or be an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.

Texas Case

In the State of Texas, et al. v United States, et al., Judge Andrew Hanen ruled that DACA was unlawfully created by the executive branch of the federal government in violation of the Administrative Procedure Act. The judge set aside the 2012 U.S. Department of Homeland Security (DHS) memorandum that originally established DACA and sent DACA back to DHS for the agency to take steps to comply with the court order. 

DACA had previously been challenged several times in court. This latest lawsuit was brought in the U.S. District Court for the Southern District of Texas by the State of Texas along with Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia, who claimed DACA was unlawful and that it unjustly burdened them with extra costs for services like education, healthcare and law enforcement. 

An appeal is expected to be filed in the U.S. Court of Appeals for the Fifth Circuit, and the case will likely wind up in the U.S. Supreme Court.

While Hanen said the “public interest of the nation is always served by the cessation of a program that was created in violation of law,” he recognized that “complete and immediate cessation of DACA” would not be beneficial. 

“Hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program,” Hanen wrote in the ruling. “Given those interests, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly.”

What The Ruling Means for Eligible Dreamers

If you already have DACA, you retain your status, and your renewal applications for DACA and work authorization will continue to be processed and adjudicated. Initial DACA applications will also continue to be accepted, but the federal government is prohibited from granting DACA to any new applicants, including those applications that were pending prior to the ruling. 

Given the ruling, it is more important than ever for DACA recipients to file for renewals in a timely manner. U.S. Citizenship and Immigration Services (USCIS) encourages renewals to be filed between 120 and 150 days prior to expiration. USCIS will accept forms before the 150-day mark, but they will not be processed prior to that point. If your renewal request is filed more than a year after your last DACA grant expired, your application will be considered an initial request and, as per the recent court ruling, will not be granted.

If you are considering applying for DACA for the first time or if your status has lapsed, speak to an immigration attorney about your options before taking any action. 

Bill in Congress

As part of a sweeping immigration reform bill sent to Congress in the first days of his administration, President Joseph Biden outlined an earned roadmap to citizenship for Dreamers. While attempts by Congress to codify DACA into law have failed for years, the recent court case has increased pressure on lawmakers to find a legislative solution to create a more certain future for Dreamers. Given the current conservative makeup of the Supreme Court, which is likely to adjudicate DACA after the Fifth Circuit appeals court, Congressional action may be the only hope for the policy’s survival. If you have questions about your DACA status or application or you would like to speak to an immigration lawyer about another matter, contact Bolour/Carl Immigration Group at 323-857-0034 or info@americanvisas.net

About the Author

Ally Bolour

Ally Bolour has been practicing immigration law since 1996. He is the Founding and Managing Partner at Bolour / Carl Immigration Group, a full service immigration law firm based in Los Angeles with satellite offices in Salinas, CA and Palm Springs, CA. He is an Elected Director at the American Immigration Lawyers Association (AILA). Previously, he served on the Board of Trustees at the American Immigration Council. He is a member of the LA County Bar Association & the LGBT Bar Association. Ally is a frequent speaker on immigration issues for AILA and other local, national, and international organizations. He is fluent in Persian.

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