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Impact of Supreme Court decision on DACA filings

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On June 18, 2020, the U.S. Supreme Court ruled that the Trump administration’s decision to terminate 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 U.S. District Court for the District of Maryland issued an order restoring DACA to its state before it was canceled.

Can people who have never had DACA apply now?

As a result of the June 18, 2020, Supreme Court ruling and the July 17, 2020 U.S. District Court for the District of Maryland order, USCIS must accept initial DACA requests from those who have never had DACA.

Following the subsequent order of the U.S. District Court that explicitly requires USCIS to accept DACA’s initial applications, the expectation is that USCIS will begin accepting these requests. 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 people who have never been granted deferred action under DACA before.” To comply with the Supreme Court’s decision, as well as the order of the Maryland District Court, USCIS must accept the following requests that were suspended under previous court orders:

Individuals who currently have DACA: Current DACA recipients may file a DACA renewal application.

People whose DACA expired a year or less ago:recipients whose previous DACA expired a year or so ago can still file a DACA renewal application.

People whose DACA expired more than a year ago:Recipients whose previous DACA expired more than a year ago cannot file a DACA renewal application, but may file an initial DACA application.

People whose DACA was terminated: DACA receivers whose previous DACA was terminated at any given time DACA as renewal, but can file an initial DACA application.

Persons who have not previously received DACA: The Court’s decision of 18 June 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 the processing of new initial DACA applications.

Early parole applications:The Court’s June 18, 2020 decision 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 2012 DACA program, USCIS must immediately publish the guide on processing early parole applications filed by DACA recipients.

What’s next?

While the Supreme Court’s decision is an incredible victory, DHS still has authority over the DACA program, as well as the fate of DACA beneficiaries. 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.

First-time DACA requesters before USCIS issues guidance, they must consider several factors, including:

(1) the possibility that the administration may issue a new MEMORANDUM rescinding DACA before the applicant receives a decision;

2) which – in the absence of guidance, USCIS officials could reject or accept new applications and deny them;

3) that USCIS accumulates significant processing delays, as well as a budget deficit that may further delay the awards.

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