Court declares DACA program illegal, but leaves policy intact for nearly 600,000 immigrant "Dreamers"

Appeals court rules DACA illegal, but policy can remain for current enrollees

A federal appeals court on Wednesday said the Deferred Action for Childhood Arrivals (DACA) policy violates U.S. immigration law, dealing a blow to an Obama-era program that provides deportation protection and work permits to nearly 600,000 immigrant "Dreamers" who lack legal status.

A three-judge panel for the 5th Circuit Court of Appeals concluded the Obama administration did not have the legal authority to create DACA in 2012, affirming a July 2021 ruling from a federal judge in Texas who barred the Biden administration from enrolling new immigrants in the decade-old program.

Despite its conclusion, the appeals court did not order the Biden administration to shut down DACA completely or stop processing renewal applications, deciding instead to leave in place an order from U.S. Judge Andrew Hanen that left the policy intact for current beneficiaries. The government, however, will continue to be prohibited from approving first-time DACA applications.  

The appeals court sent the case back to Hanen, tasking him with reviewing regulations that the Biden administration unveiled in August to address the legal challenges over the Obama administration's decision to create DACA through a memo, instead of a rule open to public comments. The regulations are currently slated to go into effect on October 31. 

The Justice Department, which represents the federal government in lawsuits, said it disagreed with the ruling and vowed to "vigorously defend the lawfulness of DACA as this case proceeds." The Biden administration is likely to file a formal appeal, paving the way for the conservative-leaning high court to issue a final decision on DACA's legality next year.

In a statement issued late Wednesday night, President Biden said he's "disappointed."

"The court's stay provides a temporary reprieve for DACA recipients but one thing remains clear: the lives of Dreamers remain in limbo," he said, adding, "it is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship." 

Department of Homeland Security Secretary Alejandro Mayorkas said he was "deeply disappointed" by Wednesday's court decision, denouncing the "ongoing uncertainty it creates for families and communities across the country." He said his department would continue processing DACA renewal cases.

"We are currently reviewing the court's decision and will work with the Department of Justice on an appropriate legal response," Mayorkas added in his statement.

In its ruling Wednesday, the three-judge panel concluded that DACA had the same legal defects as another Obama-era program that would have offered deportation protection to the unauthorized immigrant parents of U.S. citizens and green card holders. The program, known as the Deferred Action for Parents of Americans (DAPA), was blocked in court and was never implemented.

"Like DAPA, DACA "is foreclosed by Congress's careful plan; the program is 'manifestly contrary to the statute,'" the ruling said.

Like Hanen, the Texas judge who declared DACA unlawful last summer, the appeals court expressed sympathy for immigrants currently enrolled in the program in justifying its decision to allow the government to continue accepting renewal applications.  

"We also recognize that DACA has had profound significance to recipients and many others in the ten years since its adoption," the court said.

As of June 30, 594,120 immigrants who were brought to the U.S. as children were enrolled in DACA, half of whom live in California, Texas and Illinois, according to data published by the U.S. Citizenship and Immigration Services (USCIS), the agency that administers the program.

Wednesday's court ruling stems from a lawsuit filed in 2018 by Texas and other Republican-controlled states that have argued DACA was an overreach of the federal government's immigration powers.

While DACA allows beneficiaries to live and work in the U.S. legally without fear of deportation, it does not qualify them for permanent legal status or citizenship. Those enrolled in DACA had to prove they arrived in the U.S. by age 16 and before June 2007, studied in a U.S. school or served in the military, and lacked any serious criminal record.  

The court ruling could create a renewed sense of urgency in Congress to pass legislation that places the program's beneficiaries on path to citizenship, a proposal with robust bipartisan support among lawmakers and the American public.

For over two decades, however, proposals to legalize Dreamers have died in Congress amid intense partisan gridlock over other immigration issues. In the current Congress, Democrats would likely need to accept border security measures to secure the necessary number of Republican votes to pass such a legalization bill.

Mayorkas on Wednesday urged Congress to "swiftly" take action.

"Last month, DHS issued a final rule to preserve and fortify DACA, recognizing that it has transformed the lives of so many Dreamers who have enriched our nation through their contributions," he said. "It is clear, though, that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients."

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