In the wake of Federal District Court Judge William Alsup’s order last week, USCIS has announced that it will continue to accept and process DACA renewal applications. Under the guidelines,
· Those who have previously received DACA and whose DACA expired on or after Sept. 5, 2016, may file the request as a renewal request
· Those who have previously received DACA and whose DACA expired before Sept. 5, 2016, or whose DACA was previously terminated at any time, are not technically eligible to file for renewals. However, such individuals may file for new initial requests for DACA.
The bulletin does make clear, though, that individuals who have never held DACA status may not apply. Furthermore, USCIS will not accept or approve applications for advance parole from DACA holders. (Prior to this, advance parole grants allowed recipients to temporarily travel outside the US for urgent humanitarian reasons, educational, or employment purposes.)
This, of course, is not the end of the story. Judge Alsup’s order was only a preliminary injunction that keeps the program in place while litigation over its rescission continues. The government does have 60 days to appeal the ruling and officials have stated that they intend to contest it. But while the window is open, individuals eligible to renew or file for initial requests should give the matter due consideration, as long as they are cognizant that the decision can be overturned on appeal (and filing fees possibly forfeit.) Additionally, individuals who have problematic issues need to weigh the benefits of deferred action and work authorization against the potential risks of being placed into removal proceedings. For example, if a DACA recipient has been arrested or convicted of a disqualifying criminal offense, there is a high likelihood, especially in this climate, that the application will not only be denied but referred to Immigration and Customs Enforcement for further action. To illustrate: under DACA guidelines, an individual will not be considered for DACA if he/she has been convicted of
· A felony offense;
· A significant misdemeanor offense; or
· Three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of conduct
· You are otherwise deemed to pose a threat to national security or public safety.
Hypothetically, then, someone whose DACA has expired but who has subsequently been found guilty of drunk driving could unwittingly expose him/herself to removal proceedings by filing a renewal application.
So while this ruling is unexpectedly welcome news (given the recent trend), it would be prudent for DACA recipients with issues to seriously evaluate their prospects with qualified counsel. For more information on DACA and how to file the renewal request, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.