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A win for the Dreamers. DACA Applicants, ready, set, go!

Posted by Giselle Ayala Mateus | Dec 07, 2020 | 0 Comments

As a result of a procedural error, a New York federal court fully restored the DACA Program. The remarkable decision was issued on December 4th, 2020. Following the Supreme Court's decision in Dep't of Homeland Security vRegents of the Univof California, 140 S. Ct. 1891 (2020), where the court decided that the DHS order to rescind the DACA immigration program was "arbitrary and capricious" under the Administrative Procedure Act (APA) and reversed the order, Chad F. Wolf, DHS's Secretary issued a memorandum that effectively suspended DACA. However, the order again was unsuccessful. 

In its decision, the United States District Court for Eastern District Of New York explained that on November 14, 2020, it has been declared that held that Mr. Wolf was not lawfully serving as Acting Secretary of Homeland Security when he issued the memorandum, because the Department of Homeland Security ("OHS") failed to follow proper protocols as required by the Homeland Security Act ("HSA"). Accordingly, it was ordered by the court that:

  1. DHS shall continue the adjudication of new and old DACA petitions, and 

  2. DHS shall post a public notice, within 3 calendar days, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests.

  3. DHS must include in the notice a clear statement that deferred action and employment authorization documents ("EADs") granted for only one year are extended to two years, in line with the pre-memorandum policy.

Who can apply for DACA?

Under the DACA program, which was opened favor undocumented immigrants who came to the country before they were 16, certain immigrants can apply for temporary protection if they:

  • are under 31 years of age as of June 15, 2012;
  • came to the U.S. while under the age of 16;
  • have continuously resided in the U.S. from June 15, 2007 to the present;
  • entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012;
  • were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
  • are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
  • have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.

Can I apply for advance parole?

According to the recent decision that overturned the memorandum that intended to end the DACA program, the DHS must continue to receive and adjudicate advance parole petitions. However, there are additional considerations that result relevant. USCIS has an important number of petitions accumulated that have not been yet resolved, reviewed it adjudicated. This is situation has been aggravated by the fiscal deficit reported by the agency. Additionally, the US is still facing a COVID19 crisis and many petitions are being resolved considering the urgency of the applicant. Finally, it is important not to lose sight of the fact the travel bans issued by President Trump are still in place, and going overseas could be problematic for those with clear immigration status. 

However, if a DACA applicant wants to apply for advance parole, he must state the duration of the trip, the countries he intends to visit, whether the advance parole will be covering more than one trip among others. 

Will there be additional benefits for Dreamers?

It is still too early to know if the new administration will effectuate additional changes in favor of the dreamers. Even though newly elected President Joe Bidden has expressed on more than one occasion that he intends to put the U.S. back to its routes of welcoming immigrants, it is important not to lose sight of the fact that the president needs the support of Congress to make those changes. 

The Law Office of Giselle Ayala Mateus Can Help You!

When it comes to immigration laws and petition an applicant needs more than a person who knows how to complete forms. Immigration is about strategy and working with a legal professional can definitely make the difference. At the Law Office of Giselle Ayala Mateus, we are convinced that each immigrant deserves an opportunity. Call now for a free consultation, or schedule it yourself here

About the Author

Giselle Ayala Mateus

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of FOCUS a not-for-profit project focused on supporting entrepreneurs and artists.

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