DACA hearing scheduled for Friday. Here’s what happens next in Texas’ legal battle

More than 101,000 DACA recipients in Texas are living in limbo as a four-year legal battle against the program progresses.

The Texas-led challenge to Deferred Action for Childhood Arrivals began in 2018, and the next hearing is scheduled for Friday, in what could be the beginning of the end for the decade-long program.

Last week, the U.S. Court of Appeals for the Fifth Circuit affirmed a 2021 lower court ruling that DACA is unlawful because it violates the federal Administrative Procedure Act, putting a partial end to the program. Because Obama’s 2012 DACA memorandum will be replaced on Oct. 31 by the Biden administration’s new DACA regulation, the Fifth Circuit ruled that the case should return to U.S. District Court Judge Andrew Hanen.

“Based on those new rules, the lower court needs to make another determination to determine if there was a violation of the Administrative Procedure Act,” said attorney Luis Figueroa, chief of legislative affairs at Every Texan. “The lower court’s ruling previously and this higher court’s ruling suggest that the program may be in trouble.”

The trial court will decide whether its previous ruling that the 2012 DACA memorandum is illegal is also applicable to the new DACA rule. Hanen called a conference with attorneys for Oct. 14 in Houston, saying the Fifth Circuit instructed him to review the new DACA rule “as expeditiously as possible.”

“Our best understanding given that it’s only been a few days since the Fifth Circuit rule is that Judge Hanen wants to talk about timing and next steps, so what we would think of as a status conference,” said Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund, which represents 22 DACA recipients in the case.

In the meantime, DACA continues for current recipients. The Fifth Circuit ruled that anyone who currently has DACA will continue to be able to renew their grants of deferred action and work authorization.

What happens to DACA recipients?

If you currently have DACA, you are still protected and will be able to continue renewing your status. Advance Parole will remain open to DACA recipients. Here’s how to renew your DACA application, according to immigrant advocacy group United We Dream:

1. Have your previous DACA renewal application on-hand.

2. Create a free USCIS account online.

3. Complete the required forms: I-821D, I-765 and I-765WS.
   
   

4. Pay the $495 fee from the online USCIS portal.

5. Upload supporting evidence and documents that you should provide with your renewal application.

6. Make a copy of your entire application before submitting to keep in your records.

7. After reviewing and double-checking your application for accuracy, you are ready to submit.

8. You may receive a notice scheduling you for a biometrics appointment at a USCIS office near you. You can track the status of your application through your USCIS account.

Can youth still apply for DACA?

While renewals are still open, first-time DACA enrollments are blocked. If you are eligible for DACA but have never applied, DHS can still accept your application but will not be able to process it. If your first-time DACA application has not been granted as of July 16, 2021, DHS will not grant your request.

Youth who can’t enroll in DACA can seek out other types of immigration relief like cancellation of removal, asylum status or special visas. Figueroa recommends checking with a local immigration attorney to see what you’re eligible for.

“There’s other ways to adjust your status, but for many people, those options won’t be available,” Figueroa said. “There is no question, there will be a number of young immigrants that would be a tremendous boon to our nation, who could be working in fields that are in shortage areas, on frontlines that won’t have work eligibility. And that’s a detriment to not only undocumented youth, but it’s also a detriment to our country and our state.”

What does the new DACA regulation entail?

Across three federal administrations, DACA has protected approved immigrant youth from deportation. The program has allowed them to receive employment authorization, social security numbers, and Texas drivers’ licenses.

“We’ve continued to present arguments why DACA is an appropriate exercise of authority by the Department of Homeland Security,” Perales said.

To further legitimize DACA in courts, DHS in August published a final federal rule to replace the 2012 DACA Memo. It codifies the definition of “deferred action,” maintains existing criteria for DACA recipients and reiterates that DACA grants lawful presence rather than lawful status. The final rule is effective Monday, Oct. 31.

“They are largely the same rules that were in place before in terms of eligibility, in terms of the process,” Figueroa said. “The idea was to promulgate those rules and keep the program alive.”

What’s next for the DACA program?

“These cases take a long time for both the judge to take in the new evidence and then also issue a new decision,” Figueroa said.

If the lower court makes another determination that DACA violates the Administrative Procedure Act, that would be the end of the program as it would no longer be allowed to be implemented, Figueroa says. It’s unclear whether current DACA recipients will be able to finish out their two-year DACA period, or whether it will end immediately.

“There’s a range of possibilities,” Figueroa says. “They could immediately end the program, they could give recipients a time period to renew, there could be congressional action, they could strike it down and we could have a very short period where DACA recipients are still eligible for work authorization, they can slowly give a ramp period for the recipients to address their legal situation.”

Without DACA, those affected can’t rely on work authorization, so they may lose their jobs. If they can’t find immigration relief, they’ll be forced to return to a country they may not consider home, or live under a threat of potential deportation.

Should the judge decide that DACA is not in violation of the APA, the program would operate under the Biden administration’s revised DACA rule.

Currently, there’s not a direct path to legal permanent residency or to citizenship for DACA recipients. Texas immigration advocacy groups want Congress to pass permanent protections and pathways to citizenship for DACA recipients and undocumented people. The Dream Act, a bill first introduced in 2001, would provide a pathway to legal status for undocumented immigrants who came to this country as children.

“It‘s often very difficult to predict what’s going to happen in a case,” Perales said. “However, we can observe that we’ve had two court rulings so far against DACA, and specifically courts finding that Congress has to create these programs, not the president or an executive agency like DHS.”

History of Texas v. United States

Here’s a timeline of the state’s legal challenge against DACA, per MALDEF:

• June 15, 2012: The Obama administration announces the Deferred Action for Childhood Arrivals initiative, which allows undocumented young immigrants who were brought to the U.S. as children to temporarily remain in the U.S. and obtain work visas for two years at a time.

• June 29, 2017: Texas Attorney General Ken Paxton and nine states involved in a 2015 lawsuit that ended the initiative of Deferred Action for Parents of Americans and an accompanying expansion of DACA threaten to amend the lawsuit to challenge DACA if the initiative is not rescinded by Sept. 5.

• September 5, 2017: U.S. Attorney General Jeff Sessions announces the Trump administration’s decision to rescind DACA. The government sets a one-month deadline to cease accepting new DACA applications and a six-month deadline to stop processing DACA renewal requests.

• May 1, 2018: Seven states, led by Texas, file a lawsuit, Texas v. United States, in the United States District Court for the Southern District of Texas challenging DACA. The court transfers the case to U.S. District Court Judge Andrew Hanen.

• January 20, 2021: Joe Biden is sworn in as president, and signs a memorandum ordering the U.S. Department of Justice and Department of Homeland Security to “preserve” and “fortify” DACA.

• July 16, 2021: Judge Hanen rules that DACA is unlawful, but allows it to continue for current recipients. The ruling permits the processing of DACA renewals but does not allow for the processing of new applications.

• October 5, 2022: The Fifth Circuit sends Texas v. United States back to Judge Hanen for further review but upholds his ruling that DACA is unlawful. However, the court leaves the initiative in place for current DACA recipients.

Resources for DACA recipients

Find a lawyer: informedimmigrant.com/lawyer, inmigranteinformado.com

Get support: immigrantsrising.org/mental-health/, inmigranteinformado.com/recursos/salud-mental/, undocuprofessionals.net/