DACA protections remain in place for now, but appeals court orders more review and says it's illegal

The government has been seeking to address a vulnerability in the program.

October 5, 2022, 11:06 PM

A federal appeals court on Wednesday ruled that the Deferred Action for Childhood Arrivals (DACA) program -- which shields hundreds of thousands of young adult migrants from deportation and permits them to work in the U.S. -- is unlawful.

But the appellate panel allowed DACA's protections to remain in place, at least temporarily, while a lower court conducts further review in light of the Biden administration's recent efforts to codify the policy into administrative law.

Under the current set of decisions, and with the case now sent back to the district court, DACA can accept no new applications but recipients will be allowed to renew their applications.

DACA enrolls some 600,000 people, commonly referred to as "Dreamers," who were illegally brought to the U.S. as children.

A three-judge panel of the 5th Circuit agreed with a U.S. district court judge that DACA was illegal but did not move to immediately revoke the program, which has been the subject of near-constant legal battles and political lobbying since the Obama-era Department of Homeland Security outlined it via memo in 2012.

The appellate judges -- one appointed under President George W. Bush and two appointed by President Donald Trump -- wrote in their ruling that since the federal government has now issued a final rule on DACA after public comment, as required under administrative law, the district court which first sought to strike it down should reassess that view.

"A district court is in the best position to review the administrative record in the rulemaking proceeding," the judges wrote.

Nonetheless, they also wrote, "The legal questions that DACA presents are serious, both to the parties and to the public. In our view, the defendants have not shown that there is a likelihood that they will succeed on the merits."

The largely technical appellate ruling on Wednesday continues the limbo in which DACA has been suspended since U.S. District Court Judge Andrew Hanen ruled it illegal last year, leading to the current appeal by the federal government, the state of New Jersey and others.

"The good news is that those currently with DACA will continue to live and work under the protections of the program. The bad news is that DACA is hanging by a thread," Sergio Gonzales, the executive director of advocacy group the Immigration Hub, said in a statement on Wednesday.

Nine largely Republican-led states had challenged the program, arguing its protections for migrants who entered the country illegally created an untenable drain on state resources and that the president had acted beyond his authority in issuing such a sweeping program without lawmakers' approval.

PHOTO: U.S. Homeland Security Secretary Alejandro Mayorkas speaks during a news conference in Washington, Sept. 9, 2021.
U.S. Homeland Security Secretary Alejandro Mayorkas speaks during a news conference in Washington, Sept. 9, 2021.
Drew Angerer/Getty Images, FILE

Judge Hanen, in an earlier ruling in the legal battle over the migrant protections, wrote that "if the nation truly wants to have a DACA program, it is up to Congress to say so."

Last year, Hanen sided with the nine states arguing that DACA was a burden, agreeing with "the hardship that the continued operation of DACA has inflicted on them."

"The court clearly saw that this program is against the law through and through," Texas Attorney General Ken Paxton said in a statement after Hanen's 2021 ruling. "This lawsuit was about the rule of law – not the reasoning behind any immigration policy. The district court recognized that only Congress has the authority to write immigration laws, and the president is not free to disregard those duly-enacted laws as he sees fit."

Then, in August, the DHS issued a final rule to take effect on Oct. 31 that would largely preserve the eligibility criteria outlined in a 2012 memo by then-Homeland Security Secretary Janet Napolitano, including the requirement that DACA applicants must have arrived in the U.S. before the age of 16 and must have continuously resided in the country for at least five years before June 15, 2012.

The final rule was issued after being subject to public comment in a bid to absorb DACA under administrative law rather than through presidential discretion -- which is at the heart of the current legal dispute.

It was not immediately clear how quickly Hanen would revisit the program in light of the appellate ruling.

"I am deeply disappointed by today's DACA ruling and the ongoing uncertainty it creates for families and communities across the country," Homeland Security Secretary Alejandro Mayorkas said in a statement. "We are currently reviewing the court's decision and will work with the Department of Justice on an appropriate legal response."

With DACA's history of legal scrutiny -- the Supreme Court once deadlocked over it and, in another ruling that was 5-4, blocked Trump from ending it -- experts and advocates alike say the only way to protect its beneficiaries is through congressional action.

President Joe Biden has called on Republicans to support a pathway to citizenship for the enrollees -- a politically fraught process that has divided the GOP and repeatedly failed, over the years, to result in federal legislation.

DACA's supporters echoed the need for a new law again on Wednesday.

PHOTO: Susana Lujano, left, a dreamer from Mexico who lives in Houston, joins other activists to rally in support of the Deferred Action for Childhood Arrivals program, also known as DACA, at the U.S. Capitol in Washington,June 15, 2022.
Susana Lujano, left, a dreamer from Mexico who lives in Houston, joins other activists to rally in support of the Deferred Action for Childhood Arrivals program, also known as DACA, at the U.S. Capitol in Washington,June 15, 2022.
J. Scott Applewhite/AP, FILE

"No one should be fooled by today's ruling – while we do not know the exact timing of further court action, we do know that the chances of DACA surviving for much longer are significantly worse than they were just a few hours ago. The urgency for Congress to act now, in 2022, is higher than it has ever been," said Todd Schulte, the president of progressive group FWD.us.

He estimated that if the program were to end completely, around 5,000 recipients would fall out of status each week and lose their ability to work.

DACA recipients must renew their application for the program every two years. With the program in jeopardy, current recipients don't know how long they can count on being protected -- essentially through deprioritization -- from deportation.

Elizabeth Rodriguez, 30, was brought to the U.S. from Mexico when she was 1-and-a-half years old. She previously told ABC News that the perpetual uncertainty of her immigration status made it difficult to plan for her future.

She said that, having grown up in the U.S., she considered herself a citizen in every way except the only one that might -- ultimately -- matter.

"I can't plan to get married, to have kids because I don't know where I'm going to be when my DACA card expires," she said. "So that's the importance of having some sort of legal change ... The only thing that I'm missing is that one piece of paper."

Flavia Negrete was recently accepted into the Broad Institute of Harvard and the Massachusetts Institute of Technology for computational biology and previously told ABC News she was determined to pursue her academic and career goals despite the legislative gridlock that she said was preventing DACA recipients like her from having stability in their lives.

"I refuse to let their mayhem in politics tell me that I can't pursue something I'm very passionate about," she said. "Hopefully, you know, whatever comes I will face it head on, as we always have in this community."

ABC News' Luke Barr and Alexander Mallin contributed to this report.

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