Menlo DACA Student Notice – February 27, 2018

On Monday, February 26th, the Supreme Court denied the request by the Department of Justice to immediately hear the University of California DACA case. A California federal district court had issued a national injunction in this case on January 9th, requiring USCIS to accept DACA renewals again. The Supreme Court’s denial of the Justice Department’s request means that review of the injunction will now proceed in the usual process through the Ninth Circuit Court of Appeals. That same process is currently proceeding in the Second Circuit Court of Appeals, reviewing a similar injunction put into place by a N.Y. district court.

Under the injunction, USCIS is now accepting DACA renewals, but is not accepting new DACA applications.

The appeals process in both the Ninth Circuit and the Second Circuit will probably take a minimum of several months. If either appeals court upholds the injunction from the lower court, the nationwide injunction will remain in place. Regardless of whether the appeals process results in upholding or reversing the injunctions, the case will then proceed to the Supreme Court.

For more detail on the legal background of these cases, see this National Immigration Law Center summary.

What should students do?
The fact that the injunctions remain in place means two things: 1) students who have DACA now and it is time to renew, or who had DACA in the past even if it is expired now, need to take advantage of the current system while it is working, and 2) students and schools need to understand that these court cases do not provide the long-term permanent security that is needed.

In terms of using the current system, immigrant legal advocates recommend that those who qualify for renewal should renew. See the blog post by United We Dream (UWD) and National Immigration Law Center, along with this infographic designed by both groups. The injunction re-opening the DACA system applies to those individuals who currently have DACA or have had DACA status in the past. Even if a student’s DACA status has expired, she or he is eligible to apply for renewal. Advocates also recommend that individuals may want to review their applications with a lawyer or a BIA (Board of Immigration Appeals)-accredited representative. For more information, you can check out the FAQs from UWD, NILC, or the University of California Immigrant Legal Services Center.

DACA recipients applying for renewal under the “open window” created by the injunction, may nonetheless experience gaps in their DACA status and associated work authorization, especially if they have not yet submitted a renewal and their DACA authorization is set to expire in the next month or so. Although the USCIS started accepting renewals in mid-January (when the injunction went into effect), many DACA recipients whose authorizations were scheduled to expire in the coming months did not apply immediately for renewals, either because they did not have the resources to pay the fee of $495 or because they were afraid about their long term prospects under the program. While it is anticipated that an increasing number of DACA recipients now will apply for renewals, the number of people in the backlog or how long the process will take is not known at this time. (Prior to the rescission of DACA, the USCIS goal for processing DACA renewal applications was 120 days, and DACA recipients were advised to apply for renewal within 150 days of the expiration of their status).