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Deferred Action for Childhood Arrivals (DACA)

The Obama administration announced the Deferred Action for Childhood Arrivals (“DACA”) program on June 15, 2012. Since August 15, 2012, more than 800,000 applicants have been granted DACA status, which is a temporary and renewable immigration status generally known as “deferred action.” DACA was initially available to applicants who had entered the United States before age 16, had resided continuously in the U.S. since June 15, 2012, who were enrolled or had graduated from school, and who had not committed certain crimes.

However, the status of the Deferred Action for Childhood Arrivals (DACA) program has been constantly changing due to the actions of the Trump administration and the multiple lawsuits that have been filed both in favor of and against DACA. If you are a “DACA-mented” student, it is critical that keep your DACA status current and that you stay informed about the changes to the DACA program.

Post-Northern District of California Injunction Frequently Asked Questions (FAQ) Current as of March 29, 2018

These FAQs are informational and do not constitute legal advice. Each individual case is different, and advice may vary depending on the situation. Further, the information is changing daily. If you have any questions about your case, please contact a Center attorney for a consultation as soon as possible.

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  • FAQs

    • On January 9, 2018, a federal judge in Northern California ordered the U.S. government to temporarily resume accepting DACA renewal applications for anyone who has ever been granted DACA. This court order temporarily blocks the U.S. government’s decision to terminate the DACA program, which happened on September 5, 2017. The order applies nationwide. On February 13, 2018, another federal judge in New York made a similar order that also required the U.S. government to temporarily continue accepting DACA renewal applications.

      On February 26, 2018 the Supreme Court denied the U.S. government’s request to make a decision on the legality of the first temporary order allowing DACA renewals to continue. This means that the U.S. government will continue accepting and processing DACA renewal applications until a court decides to lift the injunction in either the California or New York lawsuits. Please see Question 3 for more information on timing.

      On March 5, 2018, another federal judge in Maryland ruled that the Trump Administration has the authority to rescind DACA. However, the two injunctions from the California and New York cases remain in effect nationwide despite this Maryland decision. This means that, as of this writing, the Maryland decision should not affect the ability to apply for DACA renewal.

      On November 8, 2018, the Ninth Circuit issued a decision affirming the lawfulness of the preliminary injunction in Regents of the University of California v. Department of Homeland Security. In its decision, the court reasoned that the plaintiffs in the case were likely to prevail on their claim that the Trump administration’s termination of DACA was “arbitrary and capricious” and therefore unlawful.

      As of November 2018, USCIS is continuing to accept DACA applications from individuals who currently have or previously had DACA. The injunctions issued by the U.S. District Courts for the Northern District of California, the Eastern District of New York, and the District of Columbia remain in place and require USCIS to continue accepting and adjudicating DACA renewal applications. However, the ultimate fate of the DACA program remains uncertain. Eligible DACA recipients are encouraged to consult with an attorney or Board of Immigration Appeals–accredited representative and decide as soon as possible whether to submit renewal applications.

    • Yes. USCIS is accepting the same forms and filing fees for DACA Renewal as prior to September 5th, 2017. To renew your DACA, you will need submit the following:

      • Form I-821D
      • Form I-765
      • Form I-765WS
      • A front and back copy your current Employment Authorization Document (EAD)
      • Check or money order for $495 made to "U.S. Department of Homeland Security"
      • 2 passport-style photos
      • Any other documents as required by the instructions associated with each form.
    • You can still submit your request to renew your DACA until the courts decide otherwise, so long as you remain eligible for DACA. There is no way for us to know for sure how much time you have left to file your request to renew your DACA. Because the DACA cases will now go through the normal appeals process instead of being reviewed by the Supreme Court, there may not be another decision affecting DACA Renewals for several months (possibly even a year).

      We still recommend that you file your renewal request at least 120 days (about 4 months) before your DACA expires. You do not have to wait until 150 days (5 months) before your DACA expiration date to submit your request to renew DACA. Regardless of when your DACA expires, USCIS will process your renewal request. However, you may not want to file your renewal request now if your DACA will not expire for a very long time. Below are some factors to consider if your DACA expiration date is beyond 150 days. We recommend that you talk this through with a Center attorney:

      PROS

      • If you get your application in before any further movement in courts that terminates the option to renew, there is a higher chance that your renewal request will be processed.
      • If USCIS approves your renewal request, you will have your DACA and EAD (work permit) at least beyond 2019 and into 2020 rather than them expiring later this year or in 2019.

      CONS

      • If USCIS rejects your application for being filed too early, then you may lose your $495 filing fee. However, we have not seen this happen since the January 9th injunction, even for DACA renewals where the expiration dates are early 2019.
      • If USCIS processes your renewal request normally, then your new EAD will begin its 2-year period from the approval date. This means that your new EAD may not allow you to work with authorization for a full 2 years after your current EAD expires:

      EX. Your DACA/EAD expires in January 2019. You decide to submit your renewal request this month (March 2018). Your case is very simple and it only takes USCIS a month to approve your request. Your new DACA/EAD will be valid from April 2018 to April 2020, not January 2019 to January 2021.

    • No. In its newly posted guidance, USCIS has stated that it will not accept initial DACA application from potential first-time applicants.3

      See https://www.uscis.gov/forms/our-fees.  Note that the total DACA filing fees are $495: $410 for Form I-765 and $85 for the Biometric Services fee.

      See https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary- injunction.

    • Yes. If you have received DACA before but it expired before September 5, 2016 and you did not renew, then you may renew your expired DACA by filing an initial DACA application with supporting documents that establish you are eligible for DACA. Please consult with a Center attorney for support with your DACA application.

      If your DACA expired on or after September 5, 2016 but you did not renew, then you may renew your expired DACA by filing a renewal DACA application (please see Question 2).

    • No. Based on the Court’s Order, the eligibility requirements for DACA have not changed. However, that does not mean that it is safe for everyone to renew their DACA. The circumstances listed in the bullet points below could trigger enforcement action - it is very important to consult with an attorney if any of the following applies to you:

      • You have had any contact with police or the courts, including arrests, convictions, or any other criminal issues;
      • You have had any contact with immigration authorities, including detention, deportation, or removal from the United States; or
      • You have moved and changed your address since your last DACA application.
    • No. In its newly posted guidance, USCIS states that it will not accept or approve requests for Advance Parole. If you apply for Advance Parole now, your application will be rejected and you may lose your filing fee.

    • Even though the original DACA program promised that information would not be shared with ICE, we do not know if the new administration will maintain that promise.

      CONTACT WITH IMMIGRATION ENFORCEMENT

    • While flying, you could be asked by airport security to provide proof of your immigration status. Airports are “ports of entry” into the U.S. – there are Customs and Border Protection (CBP) officers at airports, and constitutional protections are limited at ports of entry. U.S. domestic flight security is governed by the Transportation Safety Administration (“TSA”), which is part of the Department of Homeland

      4 See https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary- injunction.

      Security. If you are traveling by air or land within 100 miles of any U.S. border, CBP officers have certain additional powers and can operate immigration checkpoints. Please see the American Civil Liberties Union's (ACLU) fact sheet on risks present within the “100-mile border zone.”

      If you currently have DACA and it has not expired, you should be able to travel within the U.S. via plane or other forms of transportation using a current, valid Texas state ID card, driver's license or your EAD card. You may be asked questions about your immigration status if you use a document that shows your country of citizenship (such as a non-U.S. passport or EAD card).

    • The U.S. Constitution guarantees rights to all people in the U.S., regardless of citizenship status, which includes the right to be free from unlawful searches and seizures. In practical terms, that means that during a police or immigration officer encounter:

      • You have the right to remain silent;
      • You should stay calm and be polite;
      • You should not lie about your citizenship status or provide false documents;
      • You do not have to sign anything (if you sign, you may be giving up your opportunity to stay in the U.S.);
      • If immigration comes to your home, you do not have to open your door unless an officer has certain kinds of warrants - you should ask the officer to slip the warrant under the door or hold it up to a window so you can inspect it;
      • If you are taken into immigration custody, you have the right to a lawyer (however, please note that the government does not have to provide one for you); and
      • Additionally, if you are in immigration custody, you have the right to contact your consulate.

      You can carry the Immigrant Legal Resource Center’s “red card” with you to read your rights in case of contact with ICE. To read more about your rights, please see the National Immigration Law Center's resources.

    • You can help them develop a safety plan, as well as inform them of their rights. Please see the Immigrant Legal Resource Center’s family preparedness plan.

      5 Available at https://www.aclu.org/other/constitution-100-mile-border-zone?redirect=constitution-100-mile-border- zone.

      6 See https://www.ilrc.org/sites/default/files/resources/ab_60_4_27_15.pdf.

      7 Available at https://www.ilrc.org/red-cards (available in English and Spanish).

      8 Available at https://www.nilc.org/issues/immigration-enforcement/everyone-has-certain-basic-rights/. For multi- lingual Know Your Rights materials please see: http://www.immdefense.org/ice-home-and-community-arrests/.

      9 Available at https://www.ilrc.org/family-preparedness-plan.


Undocumented & DACAmented Student Resources

Undocumented and DACAmented students are valued members of the Texas State University community. Our goal is to raise awareness about the experiences, support services, and need for safe spaces for undocumented and DACAmented students  at Texas State.