DACA: The history, and where it stands now

Deferred Action for Childhood Arrivals (“DACA”) has been life-changing for the people who have it. 

DACA is a form of immigration protection designed to protect individuals without immigration status who came to the United States as children (the young immigrants DACA seeks to protect are often called “DREAMers”). 

For many DACA holders, the United States is the only home that they have known. Not only did DACA protect young immigrants from deportation, but it also provided work authorization and a Social Security Number.

At Pelton + Balducci, our experienced Louisiana immigration attorneys believe that everyone deserves to achieve their American Dream. That’s why we’ve dedicated our lives and careers to helping people through the immigration process. 

From our team, here’s everything you need to know about DACA and where it stands today.

DACA was life-changing because it took away the fear of deportation – a fear that these young people had lived with as soon as they learned that they did not have status. 

It was also life-changing because it opened doors. These young people who had come to consider the United States home, and many of whom had not known that they were undocumented for most of their lives, found themselves unable to participate in some of the most fundamental human activities, in particular working and studying. 

As these young people watched their friends and classmates join the workforce or pursue higher education, they were stuck, because they did not have work authorization or a Social Security Number that would allow them to work or qualify for financial aid for college. It was a demoralizing and heartbreaking experience for DREAMers and their families and a huge waste of potential for the United States.

For years now, Congress has failed to pass laws to give lawful status to the DREAMers, even though roughly 75% of U.S. citizens favor such a law. 

On June 15, 2012, President Obama announced DACA as an effort to implement a policy toward DREAMers that was sensible and humane. Since Congress had failed to act, President Obama used his authority as president to protect DREAMers. 

To qualify for DACA protections, applicants had to prove that they:

Roughly 800,000 people were granted DACA, allowing them to pursue professional, educational, and personal opportunities that would have otherwise been unavailable to them. 

Thanks to these newfound protections and opportunities, DACA holders have enriched our country with their many talents, hard work, and initiative. Numerous articles have been published about the contributions of DACA-holders to the U.S., and we at Pelton + Balducci have benefited from the remarkable talents of DACA holders who have been on our team at various times.

As important as DACA has been, it is only a partial measure, because it does not provide a path to permanent residency or citizenship. DACA holders are still blocked from full participation in the United States, and the future of the program is uncertain.

Further, many individuals were left unprotected by DACA. In November 2014, President Obama tried to expand DACA eligibility and extend protections to undocumented parents of permanent residents and U.S. citizens. This program was called “Deferred Action for Parents of Americans and Lawful Permanent Residents” (“DAPA”).

Unfortunately, DAPA never went into effect. 

Twenty-six states, led by Texas (and including Louisiana), sued to stop the implementation of DAPA and were successful. This would be the first of several challenges to deferred action initiatives that would ultimately come to threaten DACA itself. 

In September 2017, the Trump Administration announced that it would eliminate DACA altogether. 

The plan triggered multiple lawsuits from advocates and several U.S. states that wound up bringing DACA before the Supreme Court. These lawsuits kept DACA alive on a limited basis; however, USCIS stopped accepting applications from first-time applicants. Instead, it began only processing renewals.

On May 1, 2018, seven states, led by Texas (and including Louisiana), initiated a separate effort to end DACA by filing a suit against the United States. (The original suit filed by Texas did not challenge DACA. Rather it was limited to DAPA and the expansion of DACA.) 

Since the Trump Administration had already taken steps to eliminate DACA, the Mexican American Legal Defense and Education Fund (MALDEF) and the State of New Jersey intervened in this second Texas case to protect the rights of DACA holders. The State of New Jersey asked the judge hearing the Texas case to pause the case so that the parties could see what guidance the Supreme Court would offer on the issue. The judge agreed to do so. 

On June 18, 2020, the Supreme Court ruled that DACA could survive because the Trump Administration had not followed the correct procedure to end DACA; however, the Supreme Court did not decide whether DACA was lawful or not. 

After winning the election and assuming office, President Biden fully reinstated DACA in January 2021, allowing adjudications of both first-time applications and renewals. The Biden Administration would ultimately begin drafting regulations to govern the implementation of DACA. 

Since the Supreme Court issued its decision in 2020, the Federal District Court in Texas resumed hearing the case that Texas, Louisiana, and five other states had brought to end DACA. 

Under the Biden Administration, however, the U.S. government also began working alongside MALDEF and the State of New Jersey in defending DACA. On July 16, 2021, District Court Judge Andrew Hanen ruled that DACA was unlawful, as a violation of both the Administrative Procedures Act and the Immigration and Nationality Act. He therefore blocked the adjudication of initial applications; however, he allowed USCIS to continue adjudicating renewals.

The U.S. Government, MALDEF, and the State of New Jersey appealed to the Fifth Circuit Court of Appeals in New Orleans. Subsequently, on August 24, 2022, the Biden Administration published its final rule on the implementation of DACA. These are supposed to go into effect on October 31, 2022. 

On October 5, 2022, the Fifth Circuit Court of Appeals in New Orleans agreed with Judge Hanen in finding DACA unlawful but sent the case back to Judge Hanen to review his decision in light of the recently-published regulations published by the Biden Administration. 

Adjudication of initial DACA applications remains blocked, but DACA holders can continue to apply for renewal. 

On October 14, 2022, Judge Hanen extended his order protecting current DACA holders seeking renewals, but blocking new DACA applications. 

In compliance with this order, USCIS is accepting both renewal and initial DACA applications; however, USCIS is not allowed to make a decision on initial DACA applications (i.e., applications by individuals who have never previously had DACA). 

If you file an application for DACA for the first time, USCIS WILL NOT make a decision on your case, even though the agency will collect your filing fee. 

Only DACA renewal applications are currently being decided by USCIS.

Judge Hanen is now reviewing whether the newly published regulations will impact his decision on DACA’s legality. 

Although we believe that DACA was a legal and proper exercise of prosecutorial discretion, we are very concerned about the future of DACA. Both the Fifth Circuit and the Texas Southern District Court have held that DACA was unlawful. The case is again with the Texas Southern District Court, but it is unlikely that the judge will change his position. The existence of DACA in its current state – where only renewal applications will be decided – depends almost entirely on the decision of this judge. 

Further, although the Supreme Court did not reach the issue of the legality of DACA in its 2020 decision, three Supreme Court Justices explicitly stated that in their view DACA was illegal.

The only way to protect DACA is for Congress to pass legislation for DREAMers. 

In the absence of such legislation, DACA is at the mercy of politics and the courts. We urge you to contact your representatives to express your support for legislation to protect DREAMers. 

You can find out who your Congressional representative is and their contact information by using this link. You can contact your senator using this link. Urge them to support a path to citizenship for DREAMers/ DACA holders.

We encourage eligible DACA holders to renew their DACA six months prior to the expiration of their deferred action period; however, we also encourage them to explore other, more permanent options for immigration status. 

These may be available through family petitions, employment petitions, or asylum or  humanitarian cases. DACA holders should consult with seasoned immigration lawyers – ideally members of the American Immigration Lawyers Association (“AILA”) – to identify alternative forms of status and assess their eligibility for other forms of status.

It’s crucial to have an experienced immigration attorney on your side to help you prepare for all possible outcomes in DACA’s future. Pelton & Balducci can help you do just that. Contact us today to schedule a free consultation and talk about your case.