A federal judge in Texas confirmed Friday that an injunction that prevents the government from adjudicating first-time requests for Deferred Action for Childhood Arrivals (DACA) would apply to a new regulation that the Biden administration published in August.

Key Points:

  • The DACA regulation will not take effect as planned on Oct. 31, to allow initial applications.
  • The DACA status quo remains unchanged. At this time, DHS continues to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients; the agency remains prohibited from granting initial DACA requests and accompanying requests for employment authorization.

Background: In July 2021, District Court Judge Andrew Hanen ruled that DHS did not follow proper procedures when it created DACA in 2012. Last week, the Fifth Circuit Court of Appeals upheld Judge Hanen’s ruling but also sent the case back to his court to consider the legality of the new DACA regulation, which the Biden administration drafted to “preserve and fortify” the program. The Fifth Circuit left in place a partial stay that allows DHS to adjudicate renewals but enjoins the agency from adjudicating first-time requests.

After meeting with the parties, Judge Andrew Hanen issued a brief order Friday confirming the injunction would apply to not only the 2012 memorandum that created DACA but also the 2022 regulation. This means the status quo will remain unchanged pending a further ruling from the court.

BAL Analysis: Today’s order does not change the status quo for current DACA beneficiaries. Given the uncertainty around the litigation, eligible individuals are urged to renew their DACA and related employment authorization as soon as possible. BAL will continue to monitor the ongoing litigation and provide updates on important developments related to DACA. For more information, visit our DACA Resource Center here.

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

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