A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has affirmed a lower court ruling that the Deferred Action for Childhood Arrivals program is invalid. According to the appeals court, the DACA program was created in violation of the Administrative Procedure Act and is inconsistent with provisions of the comprehensive immigration system enacted by Congress.

(The program will be allowed to continue for current DACA recipients pending further judicial review, including possible review by the U.S. Supreme Court.)

It appears that DACA is on life support and can be saved only if Congress acts.

Background

The DACA program affects more than 600,000 recipients and potential new applicants, as well as employers who rely on DACA recipients as employees. The program, created by the Obama Administration in 2012 after legislative efforts failed, provides protections and benefits to undocumented individuals who entered the United States illegally as children with their parents. Commonly referred to as “Dreamers,” DACA recipients are not subject to deportation, and are eligible to apply for authorization to work and travel to and from the United States. (Undocumented individuals are generally barred from returning to the United States for a period of three or 10 years if a waiver is not obtained.)

The Trump Administration tried to end the DACA program in 2017, but in June 2020, the U.S. Supreme Court ruled 5-4 that the plan was “arbitrary and capricious,” in violation of the APA. However, even the majority said that the U.S. Department of Homeland Security had the authority to rescind the program, provided that it did so properly.

Litigation ensued, and in July 2021, a federal district court judge in Texas ruled that the DACA program was illegal. According to the District Court, the DHS had properly exercised its prosecutorial discretion in deciding not to deport Dreamers. However, the court said that the benefits of work authorization and return travel authorization could be authorized only by Congress, not by the Executive Branch. The court did allow existing DACA recipients to continue to renew their applications, pending further court review.

Then, in August of this year, the Biden Administration issued regulations purporting to codify the DACA program in its current form. The regulations took effect on October 31, 2022.

But before the effective date, the Fifth Circuit affirmed the 2021 ruling that the DACA program was illegal, and remanded the case to allow the District Court to consider the impact of the Biden Administration’s DACA regulations.

Although the DACA regulations may cure a court’s concern that the APA requirements were not met, the overriding issue of the lack of congressional action remains. It appears that the only effective way to make the program valid would be for Congress to take legislative action.

Impact

These court decisions demonstrate the precarious state of the DACA program. The courts are not coming from left field. As noted above, the Obama Administration created the DACA program via executive action only because Congress was unable to do it legislatively.

Nonetheless, these decisions could have serious negative consequences for current DACA recipients, those who wish to become DACA recipients, and employers.

Again, existing DACA recipients may retain their current protections and benefits. They may also continue to file for, and be approved for, renewal. However, new applications cannot be accepted or approved by the DHS. The agency says that it will continue to accept new applications but cannot adjudicate them based on the courts’ decisions.

What now?

The impact of the Fifth Circuit decision on new DACA applicants and the employers seeking to hire them is obvious – the decision prohibits the DHS from approving their applications. But even current DACA recipients are in a vulnerable situation based on the ruling that the Executive Branch does not have the authority to provide them with work and return travel authorizations.

Even if the Fifth Circuit’s decision is upheld by the Supreme Court, it is unlikely that the Biden Administration would seek to deport DACA recipients or individuals who would otherwise be eligible for DACA approval. But without work or return travel authorizations, it is questionable how much of a benefit that would be.

Congressional action could save the program, but, after a decade of waiting, it is uncertain whether Congress will act – even if the current DACA program is invalidated by the Supreme Court.

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