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A federal judge ruled last Friday, July 16, that the Deferred Action for Childhood Arrivals program is unlawful, blocking the Biden administration from approving new applications.
The decision came in a lawsuit brought by Republicans from nine states. Texas Federal District Judge Andrew Hanen ruled that former President Barack Obama exceeded his authority when he first created DACA in 2012.
The program, which protects undocumented immigrants who came to the United States as children from deportation, won’t end immediately. That means current recipients continue to have protection under DACA. But the ruling does block the Department of Homeland Security from approving new applications.
DACA has been tossed around through the courts for almost a decade, and the program’s recipients have become numb to threats over their status. But that doesn’t mean DACA recipients should just ignore the latest announcement, explained Mackenzie Heinrichs, an immigration attorney and fellow at the nonprofit Immigrant Law Center of Minnesota. Heinrichs specializes in responding to changes with DACA.
“We’ve staffed additional people on our phone lines. We did a DACA live session about it the other day,” Heinrichs said. “There seems to be less panic. But at a certain point, people are just experiencing fatigue around all of the changes to DACA even though there’s a sense of urgency.”
Sahan Journal has compiled what you need to know about the latest DACA ruling. Heinrichs recommended calling the Immigrant Law Center with further questions about your status.
Who exactly is affected by the latest ruling—and who isn’t?
The ruling says that United States Citizenship and Immigration Services (USCIS) cannot approve new DACA applications. This would include undocumented immigrants who were under the age of 31 as of 2012, came to the United States before turning 16, and have continuously resided in the country since 2007.
According to Heinrichs, people who want to apply for DACA can submit an application, but the agency won’t process it for now. Additionally, people who have already applied and haven’t heard back from USCIS remain in limbo. CBS News reported the backlog for DACA applications currently stands at 81,000—a 48 percent increase since March.
“People relied on USCIS saying We are accepting and adjudicating initial DACA applications. They gave them $500. They sent in the application,” Heinrichs said. “Now they’re told, We’re not going to decide on that. That’s frustrating.”
The ruling does not affect people who are currently protected under DACA. Over 5,000 active DACA recipients lived in Minnesota as of March 2020, according to the American Immigration Council, a pro-immigration advocacy group. The Council estimates an additional 2,000 Minnesota residents are eligible for DACA. Some immigrant advocacy groups have reported even higher estimates, Heinrichs said.
Heinrichs added that the new ruling also does not affect DACA recipients who are renewing their status. People with expired DACA should still be able to renew their status, too.
Some DACA recipients also receive advance parole, which allows them to leave the United States and return without losing their status. (“Parole,” to be clear, has nothing to do with legal status or criminal justice.) Heinrichs said that the Texas decision does not affect people with advance parole, but the Immigrant Law Center is advising clients against pursuing advance parole because of the uncertainty surrounding DACA.
What about the Supreme Court’s decision last year to save DACA?
The Supreme Court ruling last year answered one question: Did former President Trump follow the law when he ended DACA? The answer then was no. But the current ruling addresses the creation of the program itself. The nine states said that Obama violated the administrative rulemaking laws when he created DACA almost 10 years ago.
President Joe Biden said in a statement Saturday that the Department of Justice intends to appeal this decision. Still, the future of DACA is unclear for thousands of recipients and advocates like Heinrichs.
“The biggest concern is that this is just one step in an ongoing process and we don’t know what’s going to happen next,” Heinrichs said. “If this fully plays out in the court system, will the program ultimately be found unlawful and terminated?”
What’s the government doing about it?
Democrats are pushing immigration measures that would grant a pathway to citizenship for Dreamers in a $3.5 trillion spending bill.
The American Dream and Promise Act would help Dreamers, Temporary Protected Status (TPS) recipients, and individuals with Deferred Enforced Departure (DED), offering them protection from deportation and the chance to obtain permanent legal status in the United States.
“Only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers,” Biden said in a statement. “I have repeatedly called on Congress to pass the American Dream and Promise Act, and I now renew that call with the greatest urgency.”
Biden added that the Department of Homeland Security also plans to issue a proposed rule about DACA “in the near future.”
In a statement issued Saturday, Homeland Security Secretary Alejendro Mayorkas urged Congress to pass the American Dream and Promise Act.
“I am disappointed by yesterday’s ruling and its impact on families across the country, but it will not derail our efforts to protect Dreamers.” Mayorkas said. “DHS remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA.”
With a bipartisan split in the Senate, Heinrichs is worried the American Dream and Promise Act won’t pass. If the Department of Justice appeal falls through, the DACA program would face termination with no fallback for thousands of Dreamers.
“As we’ve seen through all this litigation, it does not offer people security, stability, or protection, because it’s subject to all these changes. It’s subject to the whims of whoever is president. It’s subject to how conservative the court system is,” Heinrichs said.
“We just need a permanent legislative solution, regardless of what happens in the courts.”
Readers can contact the Immigrant Law Center at (651) 641-1011 with further questions about their immigration status. Heinrichs urges anyone who may be affected by the recent DACA ruling to consult an immigration attorney before submitting an application.