Readers may remember that Texas and 25 other states sued the federal government in 2015 to stop its implementation of DAPA and expanded DACA, programs announced by President Obama in 2014. The federal judge in Texas, where the case began, issued a nationwide injunction preventing the federal government from moving forward. The injunction was appealed all the way to the U.S. Supreme Court, which deadlocked 4-4 – allowing the injunction to remain in place.
Because the 2015 lawsuit only challenged the 2014 expansion of DACA, it did not affect the original 2012 DACA, and many have been able to obtain DACA or renew previous DACA grants under that program even while that lawsuit was going forward.
Unfortunately, leaders in some of those states want the original 2012 DACA ended as well, and believed President Trump would end the program when he took office. Since he has (so far) refused to do so, the Texas State Attorney General (AG) and nine other Republican State Attorney Generals are now threatening to add the original 2012 DACA program to the 2015 lawsuit if President Trump does not end the program by September 5, 2017. President Trump has chosen to continue DACA up to this point, but it is impossible to say what he will do in the future. If he does not at least indicate by September 5th that he will end the DACA program, it is likely that the above-listed states will follow through on their threat soon thereafter.
If the AGs follow through on their threat, the fate of DACA may be sealed and it will likely eventually be ended by the courts. That is because every court where the suit would proceed (US District Court in Texas, US Fifth Circuit Court of Appeals, and U.S Supreme Court), is dominated by conservatives who would likely rule against the program the same way they ruled against the 2014 expansion. Even pro-immigration legal scholars concur in this analysis.
This strategy was successful for the AGs when they fought against the DAPA and DACA expansion programs in 2015, and the courts that allowed the injunction to stand in that case are the same courts that would now hear the arguments against the original 2012 DACA.
When could DACA end?
That is hard to predict exactly. It is possible, even likely, that DACA filings could end soon after the suit is filed. That is because it would be filed with the same US District Court judge who issued the first injunction, and it is highly likely that he would issue one for the original 2012 DACA program as well. That would prohibit the federal government from processing DACA applications while the case proceeds through the courts – a process likely to take at least several years. However, if the judge does not issue a new injunction, the program could continue for many months, or a year or more, before the US Supreme Court finally decides against continuing DACA.
Should someone file a new DACA application, file to renew DACA, or file an application to travel abroad (an application for Advance Parole)?
In each case the person should contact an experienced immigration attorney to advise on the pros and cons of filing each application based on the facts of their individual case and the status and progress of the court suit.
In the case of filing an application for Advance Parole, the future benefit of traveling and reentering on Advance Parole is very significant, but only if the person originally entered the United States illegally. That is because the person would now have a legal entry into the U.S.
Why is this important? It is important because having entered the U.S. legally gives a person more options if that person later has a way to obtain permanent resident status. For example, if at some time in the future a person were to marry a U.S citizen, the legal reentry on Advance Parole could allow the person to apply for permanent resident status inside the U.S. instead of having to travel abroad to apply for an immigrant visa (also permanent resident status), which would very likely also require the person to ask for a waiver of inadmissibility. Applying for permanent residency without leaving the U.S. means the person would likely not need the waiver, which makes the process faster, less expensive, and less risky.
Again, you should NOT move forward with filing any of the above applications until AFTER consulting with an experienced immigration attorney.