A U.S. appeals court ruling has once again called into question the future of the Deferred Action for Childhood Arrivals (DACA) program, which prevents the deportation of hundreds of thousands of immigrants brought to the states United as children.
The U.S. Fifth Circuit Court of Appeals ruled Wednesday that a federal district judge in Texas, who ruled Daca illegal last year, should reconsider the program, following revisions the Biden administration adopted in August.
Texas Judge Andrew Hanen found that the program failed to undergo the public notices and comment periods required under the federal Administrative Procedures Act. But he temporarily left the program intact for those who were already benefiting from it, pending the appeal.
Wednesday’s ruling from three New Orleans-based Fifth Circuit judges confirms the judge’s original finding. But he sends the matter back to her for a review of a new version of the rule issued by the Biden administration in late August. The new rule goes into effect on October 31.
“A district court is in the best position to review the administrative record in the rule-making process,” said the opinion of Fifth Circuit Chief Judge Priscilla Richman, appointed to the court by President George W Bush. . The other members of the panel were Justices Kurt Engelhardt and James Ho, both appointed by President Donald Trump.
“It looks like the status quo for Daca remains,” said Veronica Garcia, an attorney with the Immigrant Legal Resource Center, an advocacy organization.
Daca was embraced by former President Barack Obama’s administration and had a messy journey through challenges in federal court.
The Biden administration’s new rules are largely technical and represent few substantive changes from the 2012 memo that created Daca, but it was subject to public comment through a process formal rulemaking intended to improve its chances of surviving legal assembly.
During July’s arguments in the Fifth Circuit, the US Department of Justice defended the program, allied with the state of New Jersey, immigrant advocacy organizations and a coalition of dozens of powerful corporations, including Amazon, Apple, Google and Microsoft.
They argued that Daca recipients have grown to be productive engines of the American economy, owning and creating jobs and spending money.
Texas, joined by eight other Republican-leaning states, has argued that it suffers financial harm, committing hundreds of millions of dollars in health care, education and more, when immigrants are allowed to remain illegally in the country. They also argued that the White House overstepped its authority by granting immigration benefits that were up to Congress to decide.
Daca is widely expected in the Supreme Court for the third time. In 2016, the Supreme Court blocked 4-4 on an expanded Daca and version of the program for parents of Daca recipients, keeping in place a lower court ruling for the benefits to be blocked. In 2020, the High Court ruled 5-4 that the Trump administration improperly terminated Daca by failing to follow federal procedures, allowing it to remain in place.
Daca recipients have become a powerful political force even though they cannot vote, but their efforts to achieve citizenship through Congress have repeatedly failed. Any imminent threat of losing work authorization and facing deportation could pressure Congress to protect them, even as a stopgap measure.
The Biden administration has disappointed some pro-Daca supporters with its conservative legal strategy of keeping age eligibility unchanged. DACA recipients had to have been in the United States by June 2007, an increasingly inaccessible requirement. The average age of a DACA beneficiary was 28.2 at the end of March, compared to 23.8 in September 2017.
At the end of March, 611,270 people were registered in Daca, including 494,350, or 81%, from Mexico and a large number from Guatemala, Honduras, Peru and South Korea.