DACA History and Federal Court Litigation

On 15 June 2012, the Department of Homeland Security (“DHS”) issued a memorandum creating the Deferred Action for Childhood Arrivals (“DACA”) program. The Deferred Action for Childhood Arrivals program authorizes DHS to exercise prosecutorial discretion for children’s immigration violations.

From 2016 through 2020, the DACA program led to litigation in the federal court system. On 16 July 2021, a Texas federal trial court vacated the 15 June 2012 DHS memo. The court enjoined DHS from administering the DACA program until DHS complied with the Administrative Procedure Act. In addition, the court authorized DHS to continue accepting DACA applications but prohibited DHS from approving DACA status for new applicants. According to the court’s order, DHS could continue administering the program for applicants who received DACA approval before or on 16 July 2021. Similarly, DHS could continue processing renewal applications for beneficiaries who received initial approval before 16 July 2021. Thankfully, the court’s order did not require DHS to “terminate DACA status” for any currently approved DACA beneficiary. See Texas v. U.S.A., Case No. 1:18-CV-00068 (S.D. Texas July 16, 2021).

In response to the Texas court’s injunction, DHS published a proposed rule for the DACA program in the federal register. See 86 Fed. Reg. 53736 (Sept. 28, 2021). DHS published the final rule on 30 August 2022. On 13 September 2023, a Texas federal court declared the DACA final rule unlawful. Accordingly, the federal court enjoined the DACA final rule.

How Do the Court Orders Impact DACA Beneficiaries?

If U.S. Citizenship and Immigration Services (“USCIS”) previously granted DACA status, then the beneficiary’s DACA status remains valid. Since 31 October 2022, USCIS accepts DACA renewal applications and related work authorization applications. USCIS will continue to accept initial DACA requests but will not adjudicate them.

How Does DACA Status Terminate?

Other than DACA status expiring, a regulation provides the criteria USCIS uses to terminate DACA status. See 8 C.F.R. § 236.23(d). First, DACA status ends if USCIS terminates the status in its discretion. Second, USCIS may terminate DACA status if the beneficiary departs the U.S. without approved advance parole. Also, USCIS may terminate DACA status if a beneficiary enters the U.S. without inspection. With some exceptions, USCIS will send a notice of intent to terminate before ending DACA status.

Eligibility for Permanent Residency

Under certain circumstances, DACA beneficiaries may become eligible for family-based permanent residency.  For example, U.S. law may allow a DACA beneficiary to adjust status if an American citizen married the beneficiary.  Some people understand status adjustment as obtaining a green card.  When beginning the status adjustment process, an applicant files the I-485 Form while physically inside the U.S.