Amidst the media’s preoccupation with the shutdown, little was made of the Supreme Court’s decision last week not to hear arguments on DACA this term. Unless the high court were to deviate from its normal procedure, this means that arguments will not likely be heard until its next term, assuming the case is taken up. As a consequence, and in light of pending litigation, current DACA recipients (and those who previously had DACA status) may continue to file for deferred action status at least through the end of 2019. The courts are still deciding whether individuals who never filed for DACA can file initial applications for the first time, but for those who have already filed and were granted DACA status, applications for renewal must still be accepted by USCIS pursuant to two federal court orders.
That being said, “DACA status” is somewhat of a misnomer. DACA is technically deferred action, which essentially means that the government, in its discretion, has elected not to pursue removal action against an individual. Technically, a grant of DACA does not confer legal status, and as we have seen, can sometimes be arbitrarily revoked by ICE. Nevertheless, there are some tremendous benefits, and given the current impasse not only over the Wall but also over providing a path to citizenship from DACA, this two-year protection from deportation and work authorization may still be the best option out there for those who qualify.
For one thing, DACA may provide an extra layer of security should an application for permanent residence be denied. Under the new NTA policy issued last year, USCIS will initiate removal proceedings against those not lawfully present upon denial of most status-impacting applications. For example, if one is out of status and applies for permanent residence, and the I-485 is denied, he or she will likely be placed into immigration court. However, should the same individual have DACA status when the I-485 is denied (and not be removable on any other basis under the guidelines), there is a higher chance that USCIS will not pursue further action.
Even in the context of provisional waivers, DACA may be of some utility, as it affords the individual some measure of protection here while undergoing the I-601A process and waiting for an interview to be scheduled abroad. Unfortunately, those without DACA and presently in removal proceedings presently find themselves hard pressed to pursue provisional waivers. Not only has the Office of Chief Counsel instituted a blanket policy of opposing administrative closures and termination, but immigration judges themselves are now hamstrung under recent Attorney General decisions. As a result, some do not have the opportunity to even apply for I-601As while others with already approved applications are forced to take voluntary departure and wait an inordinate length of time back in their home countries for an interview to be scheduled.
Of course, individuals are cautioned to assess eligibility with counsel before applying to renew their DACA status. Any criminal charges or unauthorized travel outside the United States during or since a grant of DACA can have an important impact on an individual’s ability to qualify and stay.
For more information on how to renew DACA, 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 in lieu of consultation with an attorney.