DACA Update: USCIS Refuses to Accept Initial Applications, Limits Advance Parole Requests, and Shortens Renewals from Two Years to One Year

On June 18, 2020, the U.S. Supreme Court decided that the Trump administration’s 2017 attempt to terminate the Deferred Action for Childhood Arrivals (DACA) program was legally improper because the government agency failed to provide a reasoned explanation for its action. As explained in a previous post, the Court’s decision left the door open for the Trump administration to rescind DACA anew.

Under the Court’s decision, U.S. Citizenship and Immigration Services (USCIS) should have been accepting both initial and renewal DACA requests, as well as applications for advance parole (travel documents), since June 18. However, USCIS never issued guidance on when and how they would be processing initial requests or advance parole applications. In addition, according to numerous reports from attorneys both in Colorado and nationwide, USCIS continued to reject these applications, despite the Supreme Court’s decision.

On July 17, 2020, a federal district judge in Maryland ordered USCIS to begin accepting initial DACA requests and advance parole applications. However, USCIS continued to reject these applications, now despite the Supreme Court’s decision and a federal district’s judge’s order.

Finally, on July 28, 2020, after nearly six weeks of blatantly ignoring the Supreme Court’s decision and a subsequent federal district court order, the Acting Secretary for the U.S. Department of Homeland Security (DHS), under which USCIS falls, announced in a press release and an accompanying memorandum that it will be conducting a “comprehensive review” of the DACA program to assess its legality and to determine whether and, if so, how to continue the program in the future. In the meantime, the agency announced the following immediate changes to the DACA program:

• All initial requests for DACA and associated employment authorization will be rejected;
• All new and pending requests for advance parole will be rejected, absent “exceptional circumstances”; and
• All DACA renewals and associated Employment Authorization Documents (EADs or work permits) will now be limited to one year (shortened from two years, which has been the standard since program’s inception in 2012).

Following the announcement, a senior administration official told a Politico reporter that the new memo counts “as an intervening action that would allow the administration to continue rejecting new applicants in accordance with the court order.” In addition, the official declined to disclose how long the agency’s “comprehensive review” of the DACA program might last, but “the period could keep the program in effect beyond the presidential election in November.”

However, in doing this, DHS is again failing to follow the Supreme Court’s decision and lower court’s order requiring the agency to maintain the DACA program as it was created in 2012 and to continue processing initial and renewal requests and associated EADs in grants of two years, as well as advance parole applications. Further, DHS has failed, again, to give a reasoned explanation for its action, but rather has simply stated that it has “concerns” about the program and needs to conduct a “comprehensive review of the same.” Thus, DHS should be prepared to face litigation on this matter.

While the program continues to remain in limbo, here are some action steps you can take:

• If you are an immigrant:
  • If you have DACA, previously had DACA, or think you would be eligible for an initial grant of DACA, you should consult with an experienced immigration attorney or accredited legal representative regarding your eligibility to file a renewal or initial DACA request and regarding potential options beyond DACA.
  • Read up on your rights under the U.S. Constitution and know what to do if immigration agents (“ICE”) come to your home, work, or approach you in public.
• If you want to advocate for a permanent solution for childhood arrivals in the United States:
  • Call and/or write your Senators and Representatives expressing your support and asking them to pass a permanent legislative solution ASAP. You may also be able to meet with your member of Congress or a member of their staff by appointment or speak with them at a local “town hall” meeting, if they are holding those in your area.
  • If you are eligible, make sure you are registered to vote ahead of the November 2020 election and then go make your voice heard at the polls.
  • Educate your friends, family, co-workers, neighbors, and community about the importance of protecting childhood arrivals and about their positive impact on our economic and communal well-being.

Please stay tuned for continued updates via this website and our Facebook page throughout this time.