On Friday, August 3, 2018, the United States District Court for the District of Columbia again rejected the Government’s justification for ending the “Deferred Action for Childhood Arrivals” (DACA) program.  The court had previously ordered the Government to reinstate the program but vacated that order for a 90-day period in order to allow the Government additional time to explain the Government’s reason for rescinding DACA.  After the end of that 90-day period, the court arrived at the same conclusion as before – that the Government had failed to give a rational explanation for rescinding the program.

Can the Government Still Rescind DACA?

Notably, the court did not rule that the Government cannot rescind the program.  Rather any action to rescind the program must comply with the Administrative Procedures Act, which requires that the Government provide a rational explanation for its decision.  Accordingly, it is possible that the Government could take further action to rescind the program, but such action almost certainly cannot be completed within the requirements of the Administrative Procedures Act before August 23rd.

The court’s order will not take effect until August 23rd, in order to allow the Government additional time to file an appeal.   Barring further court order as a result of any emergency appeal or stay, on August 23rd the Government must begin accepting new DACA applications, in addition to continuing to accept and adjudicate DACA renewal applications for those who have already received DACA benefits.

Who Qualifies for DACA?

Because the specific requirements for DACA include both age-related requirements as well as residency requirements, and because not all applicants who were originally eligible to apply for DACA chose to do so, there are potential applicants who are DACA eligible but have not yet applied.  Beginning August 23rd applicants meeting the following criteria may apply:

1. The applicant must have been under the age of 31 as of June 15, 2012.
2. The applicant must have come to the U.S. before reaching the age of 16.
3. The applicant must have continuously resided in the United States since June 15, 2007, continuing through the present.
4. The applicant must have been physically present in the United States on June 15, 2012, and must be physically present at the time of filing the DACA application.
5. The applicant must have entered without inspection before June 15, 2012, or lawful status must have expired before June 15, 2012.
6. The applicant must be in school, or must have graduated or obtained a certificate of completion from high school, earned general education development (GED) certificate, or was honorably discharged from the Coast Guard or U.S. Armed Forces.
7. The applicant has not been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors, and must not be a threat to national security or public safety.

What Should Applicants Do Now?

Applicants should begin now to collect documentation to prove their age, date of entry into the U.S., residency in the U.S. since June 15, 2012, physical presence in the U.S. on June 15, 2012, and their education level or military service.  Visit Foster’s DACA webpage for further details.  Applicants should also contact their Foster immigration attorney for an evaluation of eligibility and for preparation and filing of the required application with the necessary documentation supporting eligibility.