If you find yourself confused about what’s happening with the DACA (Deferred Action for Childhood Arrivals) program, you’re not alone. The program has been the subject of judicial whiplash for years, amid threats of its termination, and its future remains uncertain.
The DACA program, which provides protection against removal and deportation for people who arrived in the U.S. as children and who currently lack legal status, was created by executive policy under the Obama Administration. The Trump Administration rescinded the DACA memo after concluding that implementation of the program was inconsistent with the Constitution’s separation of powers. The Supreme Court then heard challenges to the rescission of the DACA program and found that the Trump administration had not properly rescinded the program. DACA survived termination for the time being.
Under the Biden administration, the Department of Homeland Security (DHS) has begun the formal rulemaking process to codify DACA under federal regulation, making it less susceptible to legal challenges. At the same time, the program remains involved in litigation to determine whether its implementation is consistent with immigration law. Currently, the program is before U.S. District Judge Andrew Hanen of Texas, to whom the Fifth Circuit Court of Appeals remanded the decision to consider the impact of the Biden Administrations DACA regulations on the program’s legality.
While the program is entrenched in litigation, DHS’s U.S. Citizenship and Immigration Services will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to an injunction from the ongoing litigation, however, USCIS will accept but cannot process initial DACA requests. DACA recipients remain eligible for Advanced Parole travel authorization in limited circumstances.
Do you have questions about the DACA program? Reach out to schedule a consultation with one of our attorneys today!