The U.S. Justice Department has appealed a federal judge’s ruling that the Department of Homeland Security (DHS) did not follow proper procedures when it created the Deferred Action for Childhood Arrivals (DACA) program in 2012.

Key Points:

  • The case, Texas v. United States, will now be heard by the Fifth Circuit Court of Appeals.
  • In July, U.S. District Court Judge Andrew Hanen ruled that DHS violated the Administrative Procedure Act (APA) by creating and operating DACA. Judge Hanen stayed the ruling as it relates to current DACA recipients.
  • Following the ruling, U.S. Citizenship and Immigration Services confirmed that:
    • Current DACA recipients remain eligible for renewal of DACA relief, employment authorization and advance parole.
    • USCIS will not approve new or pending initial DACA applications; foreign nationals can continue to submit initial applications for possible future adjudication but USCIS cannot take action on them.
  • President Joe Biden had previously indicated the department would appeal the ruling, calling it “deeply disappointing.” In addition, a proposed DHS regulation to “preserve and fortify” DACA is under final White House review.

BAL Analysis: While the July ruling prevents DHS from approving any new first-time DACA grants, current DACA recipients remain able to file renewal requests and for employment authorization at this time. BAL continues to follow developments related to DACA, including in the courts and the regulatory process. For more information, please visit BAL’s DACA Resource Center here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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