DACA: Supreme Court will not hear the case now

Last update: February 26, 2018

Are DACA applications currently accepted by USCIS?
Yes. Due to a federal court order, USCIS has been again accepting applications for DACA renewals since January 13th, 2018. In short, USCIS stopped accepting DACA applications between October 5th, 2017 and January 13th, 2018.


Who can file a DACA application now?
The following terms currently apply:

  • Applicants must have been granted DACA before
  • Renewal applications will be accepted for individuals whose DACA is expiring on or after September 5th, 2016
  • Initial applications will be accepted for individuals whose DACA expired before September 6th, 2016
  • However, applications for advance parole will NOT be accepted

What is the reason for the federal court judgement?
The DACA program was cancelled by the U.S. Department of Justice. They said that the former President of the United States did not have the authority to create the program, only Congress does, so DACA was not legal. The judge disagreed saying essentially that not only did the former U.S. President have the authority to create DACA, but Congress mentioned the existence of DACA at multiple times, clearly implying that it was ok with it.
In short the judge seems to be saying that the U.S. Department of Justice could have said ‘we are changing the policy, we do not want DACA’ and they would have been able to cancel the program. But they said ‘we are canceling DACA because DACA is illegal’ and the judge is saying ‘then you cannot do that because DACA is actually legal’.


What is next?

Due to a federal court order, USCIS has been again accepting applications for DACA renewals since January 13th, 2018.On January 19th, 2017, the U.S. Department of Justice tried to bypass the normal appeal process and asked directly the Supreme Court to overturn the judge’s ruling. On February 26th, 2018 however, the Supreme Court refused to review the court order that  ‘re-opened’ DACA immediately.

In the near future, that leaves the future of DACA in the hands of the U.S. Court of Appeals for the Ninth Circuit. Because any decision made by the court of appeals will in turn be appealed to the Supreme Court, DACA will eventually be before the Supreme Court. The question is when. 

The most likely scenario at this point is that DACA will not be back before the Supreme Court until October 2018 (the Supreme Court has a summer recess and is not hearing cases between late June until early October) and that the DACA program could be opened on its current basis until a ruling of the Supreme Court ruling that would then be expected in early November 2018.

According to Supreme Court expert Lyle Denniston, the Court of Appeals is on an expedited schedule that will have legal written arguments filed by April 10th, 2018, but could try to shorten it even further. Can they shorten it enough that the Supreme Court can take the case before its recess. That is what we will pay close attention to.


What for the others? Are previously issued DACA and EADs immediately revoked?
No, they will be valid until their stated expiration dates.


What if I have a renewal request for DACA and associated EAD pending?

Applications that have already been accepted by USCIS will be processed and two-year permits will be issued for successful applicants.


What if I already have advance parole?

You can keep using it for its stated validity, but it cannot be renewed.


Where can I find the official memorandum about the latest rules?

You can find it here.


Why are DACA recipients ‘dreamers’?

Because they came to the United States before they turned 16.


What does DACA stand for?

Deferred Action for Childhood Arrival.  Until the expiration of their permit, Dreamers are protected from removal from the United States by not being a ‘priority for removal’.


What does EAD stand for?

Employment authorization card.