Reminder: Upcoming Court Decisions Could Impact DACA

Last Updated

August 8, 2018

Following the administration’s September 5, 2017 termination of DACA, a number of legal challenges were filed. In January and February of 2018, federal courts in California and New York issued nationwide preliminary injunctions ordering the government to continue to accept renewal requests from anyone who has previously held DACA.  In compliance with these injunctions, USCIS continues to accept and process DACA renewal requests from individuals who have been granted DACA in the past. However, this could this change as a result of upcoming court decisions. 


A Preliminary Injunction From A Texas Court Could Halt All DACA Applications

Texas and other states are challenging the legality of the DACA program in Texas v. Nielsen.  At any time after an August 8 hearing, the court could issue an injunction ordering USCIS to stop accepting DACA renewal requests. This would conflict with prior orders from the courts in California and New York that required the government to resume accepting DACA renewal applications. If this conflict arises, it is unclear how it would be resolved. The government has asked the Texas court to delay any injunction by two weeks so that there is time for an application for a stay to be filed in this case as well as in other pending DACA litigation. However, given the uncertainty, consider counseling clients who are eligible to renew DACA to file their requests without delay to ensure that their applications are accepted.


DACA Could Become Available To Those Who Have Never Had DACA Before

On August 3, a federal judge in Washington, D.C. affirmed its earlier ruling that the government had failed to provide a valid legal reason for terminating DACA. As a result, the court in NAACP v. Trump ordered the original DACA program be fully restored. However, the order is on hold until August 23 to allow the government time to appeal the decision and seek a stay during the appeal. In the unlikely event that the government chooses not to pursue an appeal and stay, the DACA program could be re-opened to initial applicants and DACA recipients seeking advance parole as of August 23. Advise clients interested in applying for DACA for the first time to stay tuned for updates. 

It is uncertain what the content and timing of decisions in the various DACA lawsuits will be and how they will impact current USCIS policy with respect to DACA requests.  For now, we encourage you to file DACA renewal applications for eligible clients without delay in the event that a future decision causes USCIS to stop accepting renewal requests. USCIS has been accepting renewal requests that are filed more than 150 days before expiration. However, DACA grants are issued from the date of approval so one result of filing early could be that the recipient does not benefit from a full two-year extension. Please remain alert for updates from CLINIC as soon as any decisions are issued.