After President Trump announced the termination of the Deferred Action for Childhood Arrivals (DACA) on September 5, 2017, several lawsuits were filed questioning the validity of the termination. Two court injunctions were already issued by the federal courts in San Francisco and New York ordering the USCIS to continue accepting renewals for the DACA protection. On April 26, 2018, another federal court in the District Court of Columbia also issued an injunction against the termination of the DACA program. With the latest injunction the court ordered USCIS to also accept new DACA applications.
Who will benefit from this latest court ruling?
Joshua entered the United States when he was 7 years old. When the DACA was announced in 2012, Joshua was only 10 years old. When Joshua turned 15 in December 2017, he was not allowed to apply for a DACA application. No new DACA applications were accepted after the announcement of the termination of the DACA protection in September 2017. This is the reason why Joshua has not applied for the DACA protection. Last week, Joshua heard about this new court ruling and wants to apply for the DACA protection and for an employment authorization card. What can he do?
Requirements for DACA
DACA was available to any undocumented young immigrant who:
- came to the United States when she was under the age of sixteen;
- had lived in the United States continuously since at least June 15, 2007;
- was enrolled in school or had graduated from high school or been honorably discharged from the military;
- had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and
- was under the age of thirty. Young immigrants who are out of status, who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States.
Termination of DACA and the Lawsuits
On September 5, 2017, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA program. USCIS would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018.
On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program. As a result, the USCIS issued guidance that they are accepting renewal applications.
On April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court ordered DHS to accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond. The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply.
After 90 days, Joshua will be able to file for a new DACA application as per order of the U.S. District Court by proving that he meets all the above eligibility requirements. While this is a positive development, DACA is only a temporary program and its future is very uncertain. It would be best if there will be a permanent path to citizenship for the Dreamers. At the moment, there are several bills before the U.S. Congress addressing this issue. The most appropriate bill that must be passed into law is the Dream Act (HR 3440 and S.1615). If passed into law, it will provide a path to naturalization to Dreamers after 5 years in conditional permanent resident status.
(Atty. Lourdes S. Tancinco is a San Francisco-based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)
