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The Uncertain Future of DACA

October 18, 2022

Practice Prof. Sarah Paoletti spoke with Penn Today about what the recent 5th Circuit decision means for DACA beneficiaries and their family members.

The 5th Circuit Court of Appeals recently affirmed a Texas federal district court decision that ruled the original Deferred Action for Childhood Arrivals (DACA) program unlawful. The court also ordered a lower court review of the Biden administration’s revisions to DACA, which prevented the deportation of immigrants brought into the United States as children.

Penn Today recently spoke with Sarah Paoletti, Practice Professor of Law and Founder and Director of the Transnational Legal Clinic at the University of Pennsylvania Carey Law School, about the ruling and what it means for DACA beneficiaries and their family members.

From Penn Today:

Q: How does the court decision affect people who are currently enrolled in the DACA program and other undocumented people?

A: For now, the situation for those currently enrolled in the DACA program is status quo. Current DACA recipients retain their DACA status, can apply for advance parole (a travel document issued by the U.S. Citizenship and Immigration Services that allows certain noncitizens inside the United States to depart and seek to reenter the country after temporary travel abroad), and are eligible to file for renewal of their DACA status.

For those with DACA, however, the status quo also means ongoing uncertainty and precarity of status. 

While the 5th circuit has held that DACA was an overreach of the president’s authorized exercise of prosecutorial discretion, it remanded the case to the district court for consideration of new rule put into place by the Biden administration in August of this year. The Texas district court had previously ruled that DACA failed to go through the ‘notice and comment’ process it deemed necessary, while also indicating that DACA was most likely illegal as a matter of substantive law.

We cannot predict how long it will take for the district court to rule, how that new ruling will impact current DACA recipients, and then what the 5th circuit and ultimately the Supreme Court might do.

For those who might be DACA eligible but are not current DACA recipients, including those with pending first-time applications for DACA, their situation also remains the same; the U.S. Citizenship and Immigration Services cannot process any new applications for DACA, and they remain unable to access the intended protections and benefits afforded under the DACA program… . 

Read Paoletti’s full interview with Penn Today.