Everything you need to know about DACA: What now after the 5th Circuit's ruling?
The 5th U.S. Circuit Court of Appeals ruled on Oct. 5 that the Deferred Action for Childhood Arrivals program was unlawful and sent the Texas v. United States case back to the lower courts to review recent regulation changes made by the administration of President Joe Biden.
The regulations were finalized in August and are set to take effect Oct. 31, though the program would stay mostly unchanged for current recipients who benefit from the federal protections against deportation. The new changes are meant to fix legal flaws identified by the courts and fortify its legal standing.
However, the 5th Circuit's decision agreed with the lower court's opinion that DACA has "fundamental substantive defects." This could likely spell the end of the program, but the courts continue to delay a definitive ruling.
While the lower courts take a look at the new regulations and the impact they will have in solving some of the legal challenges to DACA, beneficiaries will still be able to renew their two-year permits. New applications are once again on hold.
Here’s what you need to know about DACA, or the Deferred Action for Childhood Arrivals program.
What are the new regulations for DACA from the Biden administration?
The new regulations issued by the U.S. Department of Homeland Security, which oversees DACA, keep with long-standing procedures on how the program has been implemented.
The final rule submitted to the Federal Registrar codified these procedures, including the definition of "deferred action," which preserves the program while making its legal argument stronger.
The reason why these regulations strengthen DACA's legal case, according to DHS, is because it drives the point that the department has an executive power known as "prosecutorial discretion." Essentially, DHS gets to decide how to prioritize the enforcement of immigration laws.
If the judge sides with DHS' arguments in court, DACA would exemplify that ability but on a larger scope.
What is DACA?
Deferred Action for Childhood Arrivals, referred to as DACA, was created in 2012 as an executive action during President Barack Obama's administration. This was meant to block deportations of people who had been brought over into the United States as children, but did not have legal residency or citizenship.
DACA allows participants to remain in the country, obtain work permits and get health insurance if offered by the individual's employer.
These benefits have been advantageous to recipients pursuing higher education, getting driver’s licenses in some states and growing their respective careers. However, it does not create a pathway to citizenship.
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DACA has seen constant challenges in the decade it has existed. Court rulings from federal judges and administration changes have weakened DACA, while community organizers, businesses and activists have sought to create a permanent pathway for recipients to remain in the country.
The push for more comprehensive legislation also seeks to provide a pathway to citizenship for all undocumented immigrants.
Who are 'Dreamers'? What is the DREAM Act?
Those who receive DACA also are known as Dreamers. This is due to the DREAM Act, a piece of legislation introduced in 2001 in an attempt to create a path to citizenship. There have been many versions of this bill since then, but all have ultimately failed to change the current immigration system.
Dreamers have been actively engaged in the political process, becoming loud and visible advocates not only for their own status, but also pressing for a system that works for all undocumented immigrants.
In an interview with the Republic, Reyna Montoya, a DACA recipient and founder of Aliento, a nonprofit organization that provides support to undocumented and mixed-status families, explained that when DACA was announced she knew it was just the very beginning of a drawn-out fight.
"There were mixed feelings because from the beginning I realized that many were not going to qualify for the program. I felt it was a great injustice," she said.
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The demographics of Dreamers give context to who they are.
The average DACA recipient is 27 years old, more than half identify as women, most arrived to the U.S. between the ages of 2 and 7, and 57% have a bachelor's degree.
How does DACA renewal work?
DACA must be renewed every two years and costs $495. United We Dream, a nonprofit seeking to empower undocumented students, has made a guide you can follow here.
Some important things to note are you will need your application from your previous enrollment in the program. Consistency in your information is important to get your paperwork all in order, hence why having your previous form is handy. Renewing online at the USCIS website allows you to use previously saved information on your I-821D and I-765 forms.
What is happening with DACA right now?
The 5th Circuit sent the case back to the district court to decide whether the new regulations change legal challenges against DACA. If the regulations are found to be insufficient, this case will continue.
The Department of Homeland Security, or DHS, is not able to process new applications for DACA. Those currently enrolled are still able to stay and work in the U.S., however, new legal challenges continue to put this action on shaky ground.
In the event that Congress is unable to pass legislation, the fate of DACA and Dreamers will likely be at the hands of the Supreme Court next year.
Who is eligible for DACA?
Eligibility to the DACA program is determined by a couple of different factors pertaining to the individual's situation. Below are guidelines the U.S. Citizenship and Immigration Services has put together.
Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Had no lawful status on June 15, 2012, meaning that:
You never had a lawful immigration status on or before June 15, 2012, or
Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The application process and renewal costs $495.
How many DACA recipients are there in the US? How many are in Arizona?
According to a report from the Congressional Research Service approximately 23,800 active DACA recipients reside in Arizona. This makes up approximately 4% of the 636,390 people across the country under this protection.
Can DACA recipients travel? What is Advance Parole?
DACA recipients rarely have the opportunity to go outside of the U.S. borders due to their legal status. This carries its own difficulties when individuals have a need to do so instead of traveling for leisure.
In cases where recipients must travel outside of the country, they need a valid international passport and must be granted approval through what is known as Advance Parole. Recipients who can demonstrate that travel is for “humanitarian, education, or employment” purposes can apply to Advance Parole.
This is essentially permission from the federal government, allowing exit and reentry into the country.
If you are currently applying for DACA or DACA has not been granted to you, applying to travel outside the United States is not possible.
Have a question you need answered? Fill out this form or reach the reporter at rromeroruiz@arizonarepublic.com. Follow him on Twitter @raphaeldelag.
This article originally appeared on Arizona Republic: What is DACA? Questions about the immigration policy answered
