Deferred Action for Childhood Arrivals (DACA)

Disclaimer: The information below is a basic explanation of the Deferred Action for Childhood Arrivals (“DACA”) Status and process and is not legal advice.  Each immigration case is different based on a person’s individual immigration, family, and criminal history.

History of DACA

DACA was initially announced on June 15, 2012, by the Secretary of Homeland Security, advising that a prosecutorial discretion policy had been created for certain non-citizens who came to the United States as children. The new policy permitted these non-citizens to submit an application for deferred action (a type of temporary protection from deportation) if they met certain requirements (see requirements below). If approved, deferred action would be granted for a period of two years, and would also be eligible for work authorization if an economic need is shown.

The Fight Over DACA

Litigation over the Expansion of DACA under the Obama Administration. In November 2014, the Obama administration announced an expansion of DACA to more people as well as an extension of the period of time of deferred action and employment authorization for applicants with approved DACA applications.  The 2014 DACA expansion was challenged by the State of Texas in federal court. The federal district court judge granted the State of Texas’s request to stop the new program from taking effect. This decision was appealed all the way to the U.S. Supreme Court. In June 2016, the justices of the Supreme Court voted on whether uphold DACA in U.S. v. Texas. Because there were only eight (8) justices on the Supreme Court at this time, and the justices had split their votes 4-4 on whether or not to uphold the court order by the federal judge in Texas, the decision of the Fifth Circuit Court of Appeals upholding the initial decision of the district court judge remained in place. DACA expansion was defeated, but the original 2012 DACA policy remained in effect.

Litigation over the Cancellation of DACA under the Trump Administration. In September 2017, the Trump Administration announced that it was ending DACA.  This sparked litigation in federal courts across the country. DACA proponents won in federal district court in California and in New York, with the courts ordering that DACA renewal applications continue to be accepted. Ultimately, the lawsuits challenging the ending of DACA were consolidated into one case, Department of Homeland Security v. Regents of the University of California, which was reviewed by the U.S. Supreme Court. In June 2020, the U.S. Supreme Court ruled in a 5-4 decision that the Trump administration did not provide a detailed and rational explanation for ending DACA, as required by federal law. As a result of the Supreme Court’s decision, the DACA program remained in effect, allowing eligible DACA applicants who had been unable to file their initial for deferred action and employment authorization prior to the Trump administration’s 2017 cancellation of DACA,  to file their applications for the first time. It is important to note that the Supreme Court’s decision did not analyze whether or not the DACA program as established in 2012 was legal. This issue is likely to be reviewed by the U.S. Supreme Court in the future. 

Litigation over the Legality of DACA. While the court challenges were ongoing over the Trump Administration’s cancellation of DACA, in May 2018, ten states (Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, Mississippi, and Maine) filed a lawsuit, Texas v. United States, in federal district court in Texas, arguing that the 2012 Obama Administration memo that first established DACA was unlawful. This case was essentially paused by the judge while awaiting the 2020 U.S. Supreme Court’s decision in DHS v. Regents.  Litigation resumed in this case after the Supreme Court’s June 2020 decision in Regent’s. In July 2021, the federal court judge ruled that the DACA program as initially established in 2012, was unlawful.  The judge issued an order which stopped USCIS from accepting initial DACA Applications. DACA Renewals were allowed to continue while the attorneys for the U.S. government appealed the judge’s ruling to the Fifth Circuit Court of Appeals.  The Fifth Circuit Court of Appeals heard appeal arguments on July 6, 2022.  A decision has not yet been published by the court of appeals. It is expected that whatever decision the Court of Appeals makes will be appealed to the U.S. Supreme Court. 


2022 DACA Regulation

When President Biden was sworn into office on January 20, 2021, he committed his administration to preserving and fortifying DACA.  As part of this policy to defend DACA, in August 2022, USCIS published new DACA regulations. Although the Biden Administration was asked by DACA proponents to expand DACA eligibility to additional non-citizens, the new regulations essentially kept the same framework and requirements as the 2012 Obama-era policy.  This regulation goes into effect on October 31, 2022.  However, its implementation is currently limited by the 2021 court order in Texas v. United States, which only permits DACA renewal applications to be accepted and approved.


2012 DACA Eligibility Requirements

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet certain requirements may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred Action is a discretionary determination to not pursue removal/deportation of an individual as an act of prosecutorial discretion. Deferred action does not provide an individual with actual legal status.

The 2012 DACA eligibility requirements are:

  • Entered the United States before the age of 16 years old;
  • Entered the United States on or before June 15, 2007;
  • Have been physically present in the United States from June 15, 2007-present (certain brief and casual absences may be acceptable, but should be discussed with an attorney);
  • Be enrolled in School or have a High School Diploma or GED;
  • Have no felony convictions;*
  • Have no significant misdemeanor convictions;*
  • Have no more than two non-significant misdemeanor convictions.*

While USCIS is still accepting initial DACA applications, the approval of initial applications is prohibited due to federal court order (see above “Litigation over the Legality of DACA”).  DACA renewal applications are currently being accepted and processed by USCIS. 

A person granted Deferred Action is not eligible for Federal Financial Aid (FAFSA) for school, or other Federal Public Benefits.  Additionally, a person granted Deferred Action can have his/her status taken away if s/he commits a criminal offense.

*Any person who has any juvenile or adult criminal arrests should always consult with an attorney before applying for Deferred Action.

For advice specific to your case, please call Hoffmann Immigration Law, LLC at (815) 394-1359 to set up a consultation with one of our attorneys.