The Current State of DACA

What is DACA? Deferred Action for Childhood Arrivals (DACA) is a policy originally announced by the secretary of Homeland Security on June 15, 2012, which provided that certain non-citizens who came to the United States as children and meet several guidelines may receive of deferred action for a period of two years, subject to renewal. “Deferred action” is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. In other words, deferred action protects a non-citizen from deportation, even if that non-citizen was previously ordered removed by an immigration judge. What does DACA provide? As noted above, DACA’s primary benefit is that of deferred action – protection from deportation. Unfortunately, deferred action does not provide lawful status to a non-citizen. It does, however, provide for lawful presence as a DACA recipient does not accrue unlawful presence. While DACA does not provide a direct path to permanent residence (green card), it does allow eligible non-citizens to apply for work authorization for a two-year period, subject to renewal. Generally speaking, a grant of DACA also allows temporary travel outside of the United States via a grant of advance parole. However, travel outside of the United States may be ill-advised. General Eligibility Requirements for DACA Individuals who meet the following criteria are eligible to apply for DACA: 1) Were under the age of 31 as of June 15, 2012; 2) Came to the United States before reaching their 16th birthday; 3) Have continuously resided in the United States since June 15, 2007, up to the present time; 4) Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS; 5) Had no lawful status on June 15, 2012; 6) Are currently in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or armed forces of the United States; and 7) Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Can I still apply for DACA? While the future of the DACA program was saved in June 2020 by the U.S. Supreme Court in its decision in Department of Homeland Security et al. v. Regents of the University of California et al, (where the Court held that the Trump administration’s efforts at ending the DACA program violated the Administrative Procedure Act) that hope has recently been tarnished by a recent federal District Court decision. On July 16, 2021, a Texas federal judge issued his decision in Texas v. United States granting a permanent injunction which prohibits the Department of Homeland Security from accepting new DACA applications. The Texas Court found that DACA was unlawfully created in the first place under the Administrative Procedure Act. Can I still renew my grant of DACA? Yes. Despite the Texas District Court’s decision, the Judge issued a temporary stay of his injunction as it relates to persons who obtained DACA on or before July 16, 2021. In other words, non-citizens who currently have DACA can continue to submit renewal requests. What if my first time DACA application was pending prior to the Texas District Court’s decision? Unfortunately, due to the judge’s order and injunction, USCIS cannot approve any initial DACA requests. However, while the court order prohibits USCIS from approving initial DACA requests from persons who never had DACA, the injunction does not prohibit USCIS from accepting them. USCIS recently issued a statement indicating that they will saying they will “continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization.” While USCIS will continue to accept initial DACA applications, there are reasons why filing an application, at this juncture, would be ill-advised. If you have questions about the filing of a DACA application or any other immigration benefit, consulting with an experienced immigration attorney can be beneficial. The Law Office of George K. Gomez, P.A. Fights Hard for You As you can see the landscape of DACA is constantly evolving one. At The Law Office of George K. Gomez, P.A., we are passionate about helping our clients through these challenging, stressful, and ever-changing times and strive to remain up to date with the current state of the law to ensure that our clients have the best chance at having their relief approved. We understand the difficulties that come with going through the immigration process and ensure excellence in our services throughout the process to give our clients the confidence they need in their legal professional. Contact The Law Office of George K. Gomez, P.A. for a consultation with an Immigration Attorney in Miami-Dade County, FL. Our telephone number is (305) 539-0991.