Fifth Circuit Court of Appeals Decision on DACA: Frequently Asked Questions

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Published Oct 06, 2022

This factsheet is current as of October 6, 20,22. This is not legal advice. 

This fact sheet can be printed in PDF.

On October 5, 2022, the 5th Circuit Court of Appeals decided the Deferred Action for Childhood Arrivals (DACA) program violates U.S. immigration law. The appeals court didn't order the Biden administration stop processing renewal requests or to close down DACA. 

What was the appeals court deciding in this case? 

The appeals court was deciding whether a July 2021 lower court order about the DACA program was correct. The lower court ruled that DACA was illegal and ordered the program to end. However, DACA renewals could continue while the appeal was heard.  

What did the Fifth Circuit Court of Appeals decide on October 5, 2022? 

The appeals court decided that the district court’s decision was correct. They agreed that: 

1. The states that challenged the DACA program had the right to do so; and 
2. President Obama did not follow the law when he created the DACA program. 

For now, the appeals court also agreed that:  

1. the Department of Homeland Security (DHS) can continue to accept and approve DACA renewal applications; and 
2. DHS can accept new applications for DACA but cannot make decisions about them. 

The appeals court noted an important difference between July 2021, when the lower court made its decision, and now. Obama created DACA in 2012 through a memorandum. He did not follow the formal process of obtaining public feedback as required by law, the Administrative Procedures Act (APA). But since the district court’s decision in July 2021, DHS went through this process. DHS issued draft regulations establishing the DACA program, went through the official public feedback process, and issued final regulations at the end of the summer that go into effect on October 31, 2022.  

The appeals court recognized this development and sent the case back to it.  

How can the appeals court declare DACA unlawful when the Supreme Court saved DACA in 2020? 

This is a complicated and confusing answer. In 2020, the Supreme Court was asked to answer one main question: “did President Trump follow the requirements of the law when he ended DACA?” The Supreme Court answered that question “no.” the Supreme Court was not asked to answer and did not answer the question: “did President Obama follow the requirements of the law when he created DACA?” This question was asked in the case that was before the appeals court, and the answer from the lower court and the appeals court was “no, President Obama did not follow the requirements of the law when he created DACA.” 

Is there a possibility that the court’s decision could be put on hold or overturned? 

Yes! It is possible that the DHS—which is defending the DACA program—could ask the Supreme Court to weigh in on this case before it is sent back to the lower court. However, even if that does not happen—or the Supreme Court refuses to get involved at this stage—the case will go back to the lower court to review the regulations that go into effect at the end of this month. For the latest information in this case, please check www.ilcm.org and ILCM’s social media. 

I already have DACA. What does this mean for me? 

DACA holders can renew their DACA status as long as they have DACA status, according to the decision. Talk to an immigration lawyer about your specific situation. 

I am eligible for DACA but have not yet submitted my first application. What does this mean for me? 

The decision states that USCIS can accept initial DACA applications but cannot approve them. Talk to an immigration lawyer about your specific situation.  

I am eligible for DACA and submitted my initial application. What does this mean for me? 

Initial DACA applications are currently on hold. At this point, no new DACA first-time applications will be approved. The court ruling prevented USCIS from accepting any new DACA applications. This means that all DACA applicants who have submitted an initial DACA application (i.e. those who have never been granted DACA and are applying for their first time) and have not received approval from USCIS will have their application considered. This applies to all initial cases not approved prior to July 16, 2021. 

I was granted DACA, but my DACA expired. What does this mean for me?  

If you submit a DACA request more than one year since your last grant of DACA expired or after your most recent DACA grant was terminated (at any time), your request is considered an initial request, not a renewal, under USCIS policy. 

USCIS can accept DACA initial requests but cannot approve them while the court order is in effect. A receipt notice will be sent to you and your payment will then be accepted. The court order will direct that the request not be processed further.  

Talk to an immigration lawyer about your specific situation. 

I am DACA-eligible and have been granted Advance Parole. What does this mean for me? 

Advance Parole is not addressed in this decision. Before you leave the U.S., please consult an experienced immigration lawyer.  

If I have DACA and need to renew it, who can I contact?  

Please call ILCM at 1-800-223-1368 on Mondays 9am-1pm, Tuesdays 1-4pm, Wednesdays 9am -1pm, and Thursdays 3pm-7pm for assistance. 

Where can I find mental health support? 

United We Dream has developed a toolkit to support mental health. Please see this website to review their resources: Mental Health Toolkit | United We Dream  

The Walk-In Counseling Center offers free remote counseling (phone or online) services. See their website for information: https://walkin.org/counseling-services/locations-hours/  If you want an appointment in Spanish, please call 612-870-0565 x2. 

Where can I get more updates about DACA? 

You can check our website at www.ilcm.org for further DACA updates.