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Biden administration urges 5th Circuit to save DACA program

Fighting to save a program that has allowed more than 600,000 undocumented immigrants to build their lives in the U.S., the Biden administration told a Fifth Circuit Court of Appeals panel Wednesday it is part of the government’s solution to its lack of resources to deport the 11 million immigrants living in the country without papers.

Joined by eight other Republican-led states, Texas sued in May 2018 to undo the Deferred Action for Childhood Arrivals program, arguing then-President Barack Obama overstepped his authority when he launched DACA in 2012 as a workaround of Congress’ inability to pass legislation reforming the nation’s immigration laws.

At root, Texas’ argument that DACA is unlawful relies on age-old nativist grievances: Undocumented immigrants take jobs that could go to unemployed U.S. citizens and residents, and they are a drain on states’ taxpayer-funded budgets.

Texas claims the more than 100,000 DACA recipients in the state cost it over $250 million per year in social services, health care and education costs, and that they have an advantage in obtaining jobs because under the Affordable Care Act businesses don’t have to provide them with health insurance as they do for other employees.

But no group of undocumented immigrants has garnered more sympathy, with numerous polls showing a large majority of Americans support giving DACA recipients, also known as “Dreamers,” a pathway to citizenship.

Even former President Donald Trump, whose bid to end the program was blocked in a 5-4 ruling by the Supreme Court in June 2020, said early in his presidency DACA was a “very, very difficult subject” for him because “you have some absolutely incredible kids.”

The more than 600,000 people in the program come from 150 different countries, but 80% are from Mexico.

They consider themselves Americans and often have few ties to their home countries because they were brought to the U.S. illegally as children or became undocumented along with their parents when their visas expired.

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DACA gives them protection from deportation and allows them to get federal work permits and driver’s licenses for renewable two-year periods.

But its advantages only go so far: enrollees can’t vote or receive any federal benefits; they can’t apply for health insurance, unless it’s through their employers; and if they are convicted of any crime they could lose their status and be deported.

U.S. District Judge Andrew Hanen, a George W. Bush appointee, declared DACA unlawful in July 2021. He vacated the program and ruled the Department of Homeland Security could not accept any new applicants. But he stopped short of terminating it for people already enrolled. He stayed his vacatur order pending appeal.

New Jersey and 22 DACA recipients intervened in the case to try to save the program.

Arguing before a three-judge panel of the Fifth Circuit on Wednesday in New Orleans, New Jersey Assistant Attorney General Jeremy Feigenbaum said Hanen was wrong to vacate the 2012 memo creating DACA and should have remanded it to DHS instead to fix any defects.

“Texas chose to challenge DACA only years after policy issued,” Feigenbaum said. “That choice matters. Now that we’re a full decade later eliminating DACA would cause extraordinary disruption for recipients, their U.S. citizen children, employers and states.”

He focused on the hundreds of DACA recipients who serve in the U.S. military.

“The moment there’s a final judgment we would have an individual serving in the armed forces who is a DACA recipient on a Monday who would no longer be able to serve there on a Tuesday,” he said.

The District of Columbia and 22 states either led by Democratic governors or with one legislative chamber controlled by Democrats said in an amicus brief they have a profound interest in keeping DACA alive.

“More than 344,000 DACA recipients live in amici states, where they are valued members of the community and vital members of the workforce who contribute to the tax base,” their brief states.

Justice Department attorney Brian Boynton argued Wednesday that Texas has not established standing because it has not proven any DACA recipients would leave the state if the program is repealed.

But U.S. Circuit Judge James Ho, a Trump appointee, pointed out a survey of 3,000 DACA recipients in 2017 by an expert retained by New Jersey found around 22% said they were likely to leave the country if DACA’s eliminated.

Boynton noted to qualify for DACA people have must lived continuously in the U.S. since June 15, 2007.

“They are deeply enmeshed in their communities, so the idea they would leave is quite speculative. … At the end of the day, it’s almost impossible to know what would happen,” he argued.

Turning to the crux of the case, Boynton said DACA is merely part of the government’s solution to its lack of resources to deport the estimated 11 million immigrants living in the U.S. without papers.

He said the Immigration and Nationality Act gives the DHS secretary authority to set immigration enforcement priorities.

But U.S. Circuit Judge Kurt Engelhardt, another Trump appointee, countered the case is not entirely about forbearance of deportation because DACA recipients can also get work permits.

“That makes a difference,” he said.

In determining DACA is unlawful, Hanen found DHS had violated the Administrative Procedure Act by starting the program without first putting it through a public notice-and-comment period as required of substantive rule changes, rejecting the government’s insistence it is a policy statement exempt from that process.

Texas Solicitor General Judd Stone told the panel they should look to Fifth Circuit precedent in disposing of the appeal.

In 2015, the majority of another three-judge panel of the appellate court held a similar program Obama unveiled in 2014 called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA – for which an estimated 4.3 million people would have qualified – along with an expansion of who qualified for DACA, did not pass muster under the Administrative Procedure Act.

“In 2015 this court held DAPA and extended DACA violated the APA. DACA was the foundation for those programs. This court should come to the same result,” Stone said.

But the federal government and Ho seized on a glaring omission Texas made in its case attacking the original DACA program.

While Texas successfully argued it had standing in the DAPA case because people enrolled in the program would have qualified for driver’s licenses and the Lone Star State subsidizes drivers licenses – it does not make applicants pay $130 in processing fees – it made no mention of those costs in the latest DACA litigation, instead basing its standing on its purported costs providing health care, social services and education to DACA recipients.

Ho said he found it interesting Texas didn’t make that argument because it “would have been easy for us to just follow our previous ruling in the DAPA case,” and asked Stone why not.

“Candidly, your honor, I can’t speak to the litigation strategy that the trial lawyers chose regarding this below,” Stone replied.

“But these hundreds of millions of dollars in costs, which both sides’ experts directly attribute to DACA recipients, plainly are constitutionally sufficient [to establish standing] as well,” he added.

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U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee, rounded out the panel. The judges did not say when they would rule on the case.

Juan José Martinez-Guevara, a DACA recipient and Texas Advocacy Coordinator of United We Dream, said he believes the program is not only legal but is the “morally correct thing to do.”

“I don’t believe Texas Attorney General Ken Paxton and the other people bringing this case against DACA have any sort of standing,” he continued, “because they haven’t been able to prove this program is harmful to Texas or the other states.”

Having lived in the U.S. since he was 3, Martinez-Guevara said he does not want to even imagine what making the decision to return to his home country Mexico would feel like. But he stressed Congress needs to pass permanent protections to take the issue out of the court system.

“So that myself and hundreds of thousands of other people aren’t just living court case to court case every year, just waiting to see what the next decision will be that determines whether we get to continue living in this country, or have to completely have our lives upended,” he said in a phone interview.

“And the bottom line is we consider this country our home, so we should be allowed to remain in our home.”

Some of the world’s most valuable firms, including Amazon, Apple and Google, joined by dozens of other companies and business associations, also voiced support for DACA in an amicus brief.

“DACA recipients have helped to drive and sustain the American economy by filling crucial labor shortages, creating new businesses, spending their incomes on American products and services, and paying taxes. DACA recipients have played a particularly important role as front-line workers responding to the COVID-19 pandemic. … Invalidating DACA will therefore inflict serious harm on U.S. companies, workers, and the American economy as a whole,” they wrote.

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The Biden adminstration noted to qualify for DACA people have must lived continuously in the U.S. since June 15, 2007.

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