Immigration – DACA

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Here is the most recent information on DACA rulemaking and litigation via NAFSA: Association of International Educators:

“On August 30, 2022, DHS published a final DACA rule that went into effect on October 31, 2022.

• Read the DACA final rule published at 87 FR 53152 (August 30, 2022)
• Read the DACA regulations added to the Code of Federal Regulations as 8 CFR 236 Subpart C (there were also minor conforming amendments to the employment verification regulations at 8 CFR Part 274a)

However, a prior court-imposed order currently limits the October 31, 2022 effective date. USCIS describes this limitation in an update to its DACA FAQs:

“The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021, injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.”

See USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions.

On November 29, 2021, NAFSA had joined other higher education associations in a comment letter led by the American Council on Education (ACE), submitted in response to the September 28, 2021 proposed DACA rule published at 86 FR 53736 (September 28, 2021).

Partial summary of the final DACA rule

• The final rule maintains the program’s existing eligibility criteria as established in 2012, and recipients would still receive 2 years of protection from removal (deferred action).
• In response to public comment on the proposed rule, the final rule will retain “the existing requirement that DACA requestors file Form I-765 and Form I-765WS concurrently with the Form I-821 (“bundled process”) (under the proposed rule, applying for employment authorization would have been optional).  In both the current and final programs, applicants must establish economic need on Form I-765WS worksheet to qualify for work authorization.
• In the final rule, ” DHS adopts the fee structure proposed in the NPRM of an $85 filing fee for Form I-821D, as well as a Form I-765 filing fee, currently set at $410.”
• The new regulation “rescinds and replaces the DACA guidance set forth in the Memorandum issued by the Secretary of Homeland Security on June 15, 2012.” However the rule also provides that, “All current grants of deferred action and any ancillary features previously issued pursuant to the Memorandum remain in effect and will expire according to their existing terms. All such current grants of deferred action and any ancillary features, as well as any requests for renewals of those grants and new requests, are hereafter governed by this subpart and not the Memorandum.”

But see USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions.

Threshold criteria under the final DACA rule

The final rule includes the following longstanding threshold criteria: that the requestor must have:

(1) come to the United States under the age of 16;

(2) continuously resided in the United States from June 15, 2007, to the time of filing of the request (“Brief, casual, and innocent absences from the United States will not break the continuity of one’s residence. However, unauthorized travel outside of the United States on or after August 15, 2012, will interrupt continuous residence, regardless of whether it was otherwise brief, casual, and innocent.” Other rules apply for “brief, casual, and innocent” for travel before August 15, 2012.);

(3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request;

(4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request (“If the requestor was in lawful immigration status at any time before June 15, 2012, or at any time after June 15, 2012, and before the submission date of the request, he or she must submit evidence that that lawful status had expired or otherwise terminated prior to those dates.”)

(5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

(6) not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety;

(7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order; and

(8) Applications are determined on a case-by-case basis. “Even if the threshold criteria… are all found to have been met, USCIS retains the discretion to assess the individual’s circumstances and to determine that any factor specific to that individual makes deferred action inappropriate.”)

Update: Litigation

• Update Summary:
  • In an October 14, 2022 order, the U.S. District Court for the Southern District of Texas (on remand) extended its July 16, 2021 injunction to cover DHS’s August 30, 2022 final DACA rule which is scheduled to become effective on October 31, 2022. The District Court summarized the state of its injunction: “DHS may continue to accept applications to the extent it has been ordered to do so by the court in Batalla Vidal v. Wolf, 16-CV4756, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020), but it continues to be permanently enjoined from granting DACA status for any new applicants. For DACA recipients who obtained that status on or before the date of the Court’s permanent injunction (July 16, 2021), the DHS may accept and grant DACA renewal applications.”
  • In an October 5, 2022 decision, the Fifth Circuit Court of Appeals upheld a 2021 decision issued by the U.S. District Court for the Southern District of Texas, and remanded the case to the district court to consider in light of DHS’s August 30, 2022 final DACA rule that is scheduled to go into effect on October 31, 2022. The district court had found that DHS’s 2012 DACA Memorandum and the DACA program that it created violated the Administrative Procedure Act (APA), and it therefore vacated and enjoined the U.S. Government “from administering the DACA program and from reimplementing DACA without compliance with the APA.” The district court partially stayed its injunction for individuals who were already granted DACA, allowing them to continue in and extend their DACA status. However, the injunction prevents DHS from approving new applications for DACA. The Fifth Circuit Court of Appeals decision preserves this partial stay, and allows DHS to continue adjudicating DACA renewals while the District Court revisits the case. DHS will continue to be enjoined from approving new DACA applications.“

On September 28, 2021, DHS published a proposed DACA rule in the Federal Register. For details, see the “Deferred Action for Childhood Arrivals” proposed rule in the Federal Register.

“On September 10, 2021, the Department of Justice filed a notice of appeal to the Fifth Circuit Court of Appeals seeking to overturn the Texas District Court’s ruling by U.S. District Court Judge Andrew Hanen in favor of nine states led by Texas that found the creation of the DACA program violated federal administrative law.” (NAFSA: Association of International Educators)

On July 19, 2021, USCIS issued a Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision:

“Pursuant to the July 16, 2021 Order issued by the U.S. District Court for the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting initial DACA requests.

All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.

USCIS is proud to play an important role in implementing DACA. DACA recipients are students, military service members, essential workers, and part of our communities in every way, shape, and form. USCIS will comply with the court order, continue to implement the components of DACA that remain in place, and work on publishing a Notice of Proposed Rulemaking designed to strengthen and fortify DACA.”

On July 27, 2021, USCIS updated its DACA FAQs.

“On July 16, 2021, Judge Hanen ruled that the 2012 DACA program begun by the Obama administration violated the Administrative Procedure Act (APA) notice and comment requirements, and that it was not in accordance with the Immigration and Nationality Act. The court therefore vacated the June 15, 2012 DHS memorandum that created it. The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., ‘those not already granted by the date of this order’). Although USCIS can continue to receive applications, it cannot approve them under the order. However, the injunction does not affect DACA benefits already granted, or renewal of already-granted DACA protection, including ancillary requests for DACA advance parole for those DACA recipients. Read the July 16, 2021 court order, and read the July 16, 2021 injunction order.” (NAFSA)

“On January 20, 2021, President Biden signed a Presidential Memorandum that directed the Secretary of Homeland Security, in consultation with the Attorney General, to ‘take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.’ See Memorandum for the Attorney General and the Secretary of Homeland Security, published in the Federal Register at 86 FR 7053 (January 25, 2021).” (NAFSA)

On December 4, 2020, the U.S. District Court for the Eastern District of New York ruled that “the Wolf Memorandum is VACATED. In light of the vacatur, all parties agree that the DACA program is currently governed by its terms as they existed prior to the attempted rescission of September 2017.” The judge’s December 4, 2020 order is in the case Batalla Vidal, et al. v. Nielsen, et al., Case # 1:16-cv-04756.

“in addition to vacating the Wolf Memorandum, the court orders the following relief:

• DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020. The notice must also make clear that deferred action and employment authorization documents (“EADs”) granted for only one year are extended to two years, in line with the pre-Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs, and post it to the docket within 3 calendar days of this Order.”