Impact of the Supreme Court decision on DACA filings
On June 18, 2020, the United States Supreme Court ruled that the Trump administration's decision to rescind DACA violated the Administrative Procedures Act and must be evicted. Three consolidated lawsuits were returned to the lower courts as the litigation continues. On July 17, 2020, the United States District Court for the District of Maryland issued an order restoring DACA to its status from before it was canceled.
Can people who have never had DACA apply now?
As a result of the June 18, 2020 judgment of the Supreme Court and the July 17, 2020 order of the United States District Court for the District of Maryland, USCIS must accept initial DACA applications from those who never have had DACA.
Following the subsequent United States District Court order explicitly requiring USCIS to accept initial DACA applications, the expectation is that USCIS will begin accepting these applications. However, as of the date this notice, the agency has not confirmed that it is accepting and processing initial DACA applications. As of July 20, 2020, the agency's website still says, "USCIS is not accepting applications from individuals who have never been granted deferred action under DACA before."
To comply with the Supreme Court decision, as well as the Maryland District Court order, USCIS must accept the following applications that were suspended under previous court orders:
People who currently have DACA: Current DACA recipients can submit a DACA renewal application.
People whose DACA expired a year or less ago- Recipients whose previous DACA expired a year or less ago can still submit a DACA renewal application.
People whose DACA expired more than a year ago- Recipients whose previous DACA expired more than a year ago cannot submit a DACA renewal application, but can submit an initial DACA application.
People whose DACA was terminated: DACA recipients whose previous DACA was terminated at any time DACA as a renewal, but can submit an initial DACA application.
People who have not previously received DACA: The Court's decision of June 18, 2020 requires DHS to maintain the DACA program unless and until DHS follows the correct procedure to terminate it. As a result, USCIS must immediately publish guidance on processing new initial DACA applications.
Requests for early parole: The Court's decision of June 18, 2020 requires DHS to maintain the DACA program unless and until DHS follows the correct procedure to terminate it. Because DACA-based early parole was part of the DACA 2012 program, USCIS should immediately publish guidance on processing early parole applications submitted by DACA recipients.
Whats Next?
While the Supreme Court decision is an incredible victory, DHS still has authority over the DACA program, as well as the fate of DACA recipients. For now, USCIS must continue the DACA program as it was before it was terminated on September 5, 2017. However, it remains to be seen how DHS will comply with these court orders.
Those who are applying for DACA for the first time and before USCIS issues guidance, must
take into account several factors, including:
1) the possibility that the administration can issue a new memorandum that terminates DACA before the applicant receives a decision;
2) that - in the absence of guidance, USCIS officials may reject initial new applications or accept and deny them;
3) that USCIS accumulates significant backlogs in processing, as well as a budget deficit that can further delay adjudications.