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5th Circuit tasks federal judge with deciding future of DACA program
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5th Circuit tasks federal judge with deciding future of DACA program

  • The policy is geared toward people brought into the U.S. illegally as children or who became undocumented along with their parents when their visas expired.
    Molly Adams/CC BY 2.0The policy is geared toward people brought into the U.S. illegally as children or who became undocumented along with their parents when their visas expired.

A federal program that has protected more than 600,000 young immigrants from deportation has “fundamental substantial defects,” a Fifth Circuit Court of Appeals panel ruled Wednesday, siding with a Texas-led coalition of red states who aim to phase out Deferred Action for Childhood Arrivals within two years.

Writing for a three-judge panel of the Fifth Circuit, its Chief U.S. Circuit Judge Priscilla Richman found Texas and eight other Republican-led states who sued to end DACA in May 2018 are likely to succeed on the merits of their claims that then-President Barack Obama’s administration shredded limits imposed by Congress in the Immigration and Nationality Act when it started DACA in 2012 as a workaround of lawmakers’ failure to pass comprehensive immigration reform.

“DACA’s deficiencies are severe. ... The DACA Memorandum contradicts significant portions of the INA,” Richman, a George W. Bush appointee wrote in a 46-page order joined by two colleagues appointed to the court by Donald Trump.

She bought Texas’ argument that it has standing because DACA recipients cost the state more than $250 million per year in education, medical and social services costs, and if the program was eliminated, those costs would fall because some recipients would choose to leave Texas and return to their home countries.

Texas was the only one of the plaintiff-states to present arguments about the economic impacts of DACA.

The policy is geared toward people brought into the U.S. illegally as children or who became undocumented along with their parents when their visas expired. It allows them to obtain lawful status and work permits for renewable two-year periods and roughly 600,000 people from 150 countries are enrolled.

Though a survey of more than 3,000 DACA recipients cited in the Fifth Circuit’s order found that 22% said they were likely to leave the country if DACA ended, many complain that the U.S. is the only place they know, they have few family ties in their home countries and they are weary of repeatedly having their status thrown into jeopardy by court orders.

Though an estimated 1.5 million people are eligible, new enrollments came to a screeching halt in July 2021 when U.S. District Judge Andrew Hanen, another George W. Bush appointee, decided the Department of Homeland Security had implemented DACA in violation of the Administrative Procedure Act.

He vacated the memo that created DACA and remanded it to DHS to fix its defects.

But Hanen stayed his vacatur order for the people already enrolled, acknowledging, “Hundreds of thousands of individual DACA recipients, along with their employers, states and loves ones, have come to rely on the DACA program.”

The Biden administration, along with 22 DACA recipients represented by the Mexican American Legal Defense and Education Fund, who, joined by the state of New Jersey, intervened to try to save DACA, appealed to the Fifth Circuit and a three-judge panel of the New Orleans-based appellate court heard arguments in July.

Seeking to address issues Hanen had with the original DACA memo, the Biden administration worked up a new DACA rule and published it on the Federal Register on August 30, putting it through a public notice-and-comment process, a step Hanen determined it should have taken for the first iteration.

The new rule is set to take effect Oct. 31.

Rather than waiting until after that date and weighing in on the new rule, the Fifth Circuit decided it was best to remand to Hanen because it does not have the administrative record of what changes Homeland Security has in store for DACA.

“A district court is in the best position to review the administrative record in the rulemaking proceeding,” Richman wrote.

She was joined on the panel by U.S. Circuit Judges James Ho and Kurt Engelhardt, both Donald Trump appointees.

The Biden administration faces a tall task in winning Hanen’s approval of its new version of DACA. He is a longtime critic of Democratic presidents’ claims that DACA is merely an exercise of prosecutorial discretion by the federal government — deciding who not to deport — given it lacks the resources to remove the estimated 11 million people living in the U.S. without papers.

He issued an injunction in February 2015 blocking an expanded version of DACA and Deferred Action for Parents of Americans, or DAPA, two directives Obama unveiled in November 2014, after a coalition of 26 states led by Texas sued.

The Fifth Circuit upheld Hanen’s injunction. A 4-4 split at the Supreme Court in June 2016 left the order in place.

The Supreme Court weighed in on DACA again in June 2020 when a 5-4 majority kept the program alive, finding the administration of former President Donald Trump had arbitrarily decided to end it.

Legal experts say whatever Hanen decides the case is likely headed to the Supreme Court, for yet another ruling affecting the lives of hundreds of thousands of people who depend on DACA.

José Alonso Muñoz, deputy communications director of the immigrant-led network United We Dream, called on Congress to pass legislation shielding DACA recipients from deportation and putting them on track for citizenship.

“Something has got to give here. DACA recipients have been in court for YEARS now. How much more of this legal back and forth? It’s beyond time for Congress to take DACA recipients out of this cycle of abuse and uncertainty,” he wrote on Twitter. (Emphasis in original.)

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