Special thanks to AILA member Steve Yale-Loehr for drafting this update.
On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) when it created the deferred action for childhood arrivals (DACA) program in 2012. This Practice Update summarizes the court decision and subsequent administration announcements. It also indicates how to advise DACA applicants and recipients, lists several open questions, and mentions what steps AILA members should take next.
Judge Hanen’s Decision
On July 16, 2021, Texas federal district Judge Andrew Hanen ruled that DHS violated the APA when it created the DACA program in 2012 because it exceeds the power that Congress delegated to the executive branch. Specifically, Judge Hanen held that DHS was required to go through notice and comment rulemaking under the APA. The court also identified substantive flaws with the program. The court held that DHS can continue to process DACA renewals and can accept new DACA applications, but may not approve new applications.
Administration Statements after Judge Hanen’s Decision
On July 17, 2021, the White House announced that the government will appeal Judge Hanen’s decision. The White House also announced that DHS plans to issue a proposed rule concerning DACA “in the near future.”
On July 17, 2021, DHS Secretary Alejandro Mayorkas announced that DHS “remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA. The Department of Justice also intends to appeal yesterday’s order. Moreover, we will continue processing DACA renewal requests, consistent with the ruling.”
On July 19, 2021, acting USCIS director Tracy Renaud announced that all individuals whose DACA requests were granted before July 16 “will continue to have and be eligible to renew DACA, and to request and receive advance parole.” USCIS also stated that additional guidance would be issued “in the coming days.” Finally, USCIS also stated that it would publish a notice of proposed rulemaking to “strengthen and fortify DACA” through the rulemaking process. USCIS also updated the DACA page on its website to reflect Judge Hanen’s decision.
What Does Judge Hanen’s Decision Mean for My Clients?
For DACA recipients as of July 16, 2021:
- If you have DACA now, it is still valid.
- If you have a DACA renewal application pending, you can keep renewing until further notice.
- If you have a pending initial DACA application, there is an indefinite freeze on that application.
- If you are eligible for DACA but haven’t applied yet, USCIS can accept your application but can’t process it. See Batalla Vidal v. Wolf, 501 F. Supp. 3d 117 (E.D.N.Y. 2020).
- If you have advance parole through DACA, it is still valid.
- If you have DACA and a pending advance parole application, USCIS will still process it.
It is unclear whether people who let their DACA status lapse for more than a year can reapply. In the past, USCIS stated that individuals in that situation should file a new initial application.
It is unclear whether DACA recipients who travel on advance parole will be allowed to re-enter the United States upon their return. They should be allowed to re-enter, just as most DACA recipients in the past successfully re-entered the United States, but we don’t have case examples yet.
It is unclear whether USCIS will cancel biometric appointments for initial DACA applicants, although anecdotal evidence suggests USCIS is doing that.
We don’t know what will happen if a person’s DACA status expires while a renewal application is pending.
We need to encourage Congress to pass legislation to provide a permanent solution for the estimated 700,000 DACA recipients, such as the American Dream and Promise Act, which has passed the House but is stalled in the Senate.2021