DACA Lawyers' New Rule: File a Mandamus at the 5-Month Mark

Two things happened in DACA world this week: a court order that means less than it looks, and a piece of litigation advice that means more. Atlanta attorney Charles Kuck covered both on his July 15 broadcast.

Start with the order. Judge Andrew Hanen, who has presided over Texas v. United States, the long-running challenge to DACA’s legality, denied a ten-month-old motion as moot. Kuck said his phone lit up with people reading it as movement on the merits.

The case’s actual posture hasn’t changed. After the Fifth Circuit narrowed the remedy to Texas-only work authorization in January 2025, the dispute went back to Hanen’s courtroom to implement that ruling; the court-ordered supplemental briefs were filed September 29, 2025, and no implementation order has issued since, per the Congressional Research Service’s litigation summary. Kuck’s prediction for why the silence will continue is electoral: Texas brought the case, and its attorney general is on the November ballot.

Meanwhile the renewal queue, the problem that pushed litigators toward a mass mandamus filing in June, is moving again, just not in order.

One viewer reported a renewal filed the day before and approved the same day. Another’s took roughly seven and a half months. Kuck’s read: USCIS says it works Form I-821D renewals first-in, first-out, “but they clearly don’t.”

Out of that mess comes the new number. Kuck’s benchmark for going to federal court used to track the posted processing time; now it’s a flat five months.

The vehicle is the same one delay lawyers have used for years: a suit under 28 U.S.C. § 1361 paired with an unreasonable-delay claim under 5 U.S.C. § 706(1). The court can’t order an approval, only a decision. What’s new is Kuck telling recipients they don’t need to wait for the mass action or hire counsel: “You can file your own mandamus, you can hire a lawyer, you can do it yourself.” He said a sample pro se filing is coming from the Justice Action Center and that he’ll post it once it’s up.

Two qualifiers from the Q&A. First, the five-month clock works best for people who filed at least 120 days before expiration. Kuck still tells everyone to file a full year out. A late filer whose card already expired can still sue at five months, he said, just with a weaker case. Second, courts expect you to have asked the agency first.

That sequence (case inquiry, USCIS Contact Center call, congressional inquiry) builds the record a judge wants to see, even though demand letters alone no longer move the agency.

For recipients worried the delay itself is dangerous, Kuck drew a hard line between a stale renewal and an enforcement risk: “If you have DACA, you’re not going to get arrested.” The bigger practical trap is travel: a pending renewal with an expired card will not get you onto a domestic flight safely, as one viewer planning an August trip to Hawaii learned on air.

The week’s checklist for anyone with a pending I-821D:

• Count from your receipt date. Past five months, file the inquiries: an online case inquiry, a Contact Center call, and a congressional request.
• Inquiries done and still nothing? File the mandamus, with a lawyer or without one, especially if your EAD lapsed or is about to.
• Renewing fresh? File a year before expiration, the earliest USCIS accepts.
• Don’t read anything into Judge Hanen’s docket. Renewals are still being accepted and approved nationwide.