IMPORTANT UPDATE – October 10, 2022
The Fifth Circuit Court of Appeals has made a new decision on DACA
On October 5th, the Fifth Circuit Court of Appeals upheld the State of Texas, et al., v. United States (2021) ruling that the 2012 DACA policy is unlawful, and sent the case challenging the DACA policy back to the district court that originally ruled to end DACA. The district court is now to rule on whether the Biden Administration’s new DACA rule, released August 30, 2022, is lawful.
The new DACA rule was published in the Code of Regulations by the Biden Administration to strengthen DACA protections from legal challenges as DACA would then be codified and no longer just a policy. This rule is due to go into effect on October 31, 2022. However, the district court will now decide on whether this rule is lawful. Given the Court of Appeals has asked the district court to review the rule as expeditiously as possible, the district court has scheduled a conference for the parties on October 14, 2022.
The Court of Appeals decision maintains existing protections for current DACA recipients and allows for renewals, but USCIS is still prevented from approving initial DACA requests.
What Does the Fifth Circuit Court of Appeals Decision Mean?
If you are a DACA Recipient: You are still protected and you still can renew your DACA, though you may want to renew early for greater protection.
If your DACA status has been expired for one year or more: Your renewal will be treated like a new application, which are being accepted but are NOT being approved.
If you are DACA eligible but have not applied: Applications are being accepted but are NOT being approved.
If you are DACA eligible and have applied: Pending applications are still NOT being approved.
Advance Parole: Advance Parole (travel document) is still open to DACA recipients, but processing times can be lengthy. There is also a risk to traveling on Advance Parole as it is possible the DACA program may be ended while a recipient is outside the U.S.A. It is unclear whether they would be permitted to re-enter on Advance Parole if that were to happen. We strongly advise you to seek a consultation with us or another trusted legal provider before traveling on Advance Parole.
Do You Need to Renew? Do You Still Have Questions about Your Situation?
Be sure to renew your DACA application on time or early! We recommend always having a qualified organization or immigration attorney help you with your immigration applications and to schedule an appointment usually at least 7 months before your current status expires to review your case. You may also choose to renew as early as a year in advance because of this pending litigation. ALWAYS BE SURE TO RENEW BEFORE ONE YEAR HAS PASSED AFTER EXPIRATION. Remember, preparing your application takes time so be sure to contact a preparer with enough time to get the application mailed to U.S. Citizenship and Immigration Services on time.
If you are a student, staff or faculty in any local Community College, San Diego State* or CSU San Marcos*, go to our Higher Education Legal Services (HELS) page to schedule your appointment or call 858-637-3345. Any community college student, staff or faculty in California can use findyourally.com to access free immigration legal services. Join HELS for a DACA Updates Webinar on Tuesday, November 3 from 12-1pm. Register here.
Anyone else who needs to renew DACA or wants information on DACA eligibility or any immigration legal question can schedule an appointment with Jewish Family Service of San Diego Immigration Legal Services Department by emailing [email protected] or calling (858) 637-3365.
*Immediate family members of SDSU and CSUSM are also eligible for HELS services. Alumni who have graduated in the past 2 years from SDSU and CSU San Marcos are eligible for services as well.
What does the new DACA rule Say?
The new DACA rule largely maintains the DACA program as it was created in a memo under the Obama Administration with the same eligibility criteria. It does NOT create any new eligibility, and does NOT have any effect on those who have filed initial DACA applications that are pending OR on those who are eligible but have never filed for DACA. Their applications will still not be approved pending the outcome of litigation. In other words, there is no change in the law because of this rule. The rule was published on August 30. If the district court rules it is lawful, it will go into effect 60 days after its publication, on October 31, 2022.