New Orleans — A federal appeals court on Wednesday ordered a lower court review of the Biden administration’s reviews of a program preventing the deportation of hundreds of thousands of immigrants brought to the United States as children.
The Fifth US Court of Appeals said a federal district judge in Texas should take another look at the program after the revisions adopted in August. The decision, for now, leaves the future of deferred work for childhood arrivals up in the air.
“The status quo for DACA appears to be still in place,” said Veronica Garcia, an attorney with the Immigrant Legal Resource Center, a human rights advocacy organization.
DACA was adopted by the administration of former President Barack Obama and had a complex journey through the challenges of the Federal Court.
Texas-based U.S. District Judge Andrew Hanen declared DACA last year to be illegal. It found that the program was not subject to the public notice or suspension periods required by the Federal Administrative Procedure Act. But he left the program temporarily intact for those who actually benefit from it, pending an appeal.
Wednesday’s ruling by three judges in the New Orleans-based Fifth Circuit upholds the judge’s initial finding. But she returns the case to him for a look at a new version of the rule that the Biden administration released in late August. The new rule takes effect on October 31.
“The district court is in the best position to review the administrative record in sentencing proceedings,” Fifth Circuit Judge Priscilla Richman, who was nominated to the court by President George W. Other committee members were Justices Kurt Engelhardt and James Ho, both appointed by President Donald Trump.
The new rule’s 453 pages are largely technical and represent little substantial change from the 2012 memorandum that created DACA, but they have been subject to public comment as part of a formal rule-making process aimed at improving its chances of survival.
In July arguments in the Fifth Circuit, the US Department of Justice defended the program, allied with the state of New Jersey, immigrant advocacy organizations and a coalition of dozens of powerful companies, including Amazon, Apple, Google and Microsoft. They argued that recipients of DACA grew up to become productive engines of the American economy, occupying and creating jobs and spending money.
Texas, joined by eight other Republican-leaning states, said it has been hurt financially, incurring hundreds of millions of dollars in health care, education and other costs, when immigrants are allowed to stay in the country illegally. They also argued that the White House overstepped its authority by granting immigration benefits decided by Congress.
It is widely expected that DACA will go to the Supreme Court for the third time. In 2016, the Supreme Court deadlocked 4-4 on an extended DACA and version of the program for parents of DACA recipients, while maintaining a lower court decision to ban benefits. In 2020, the Supreme Court ruled 5-4 that the Trump administration improperly terminated DACA by not following federal procedures, allowing it to remain in place.
DACA recipients became a powerful political force even though they could not vote, but their efforts to get the path to citizenship through Congress failed time and time again. Any imminent threat of losing their work permit and exposing themselves to deportation may pressure Congress to protect them, even as a temporary measure.
The Biden administration has disappointed some DACA advocates with its conservative legal strategy to keep age eligibility unchanged. DACA recipients should have been in the US in June 2007, an increasingly elusive requirement. The median age of DACA recipients was 28.2 years at the end of March, compared to 23.8 years in September 2017.
There were 611,270 people registered with DACA at the end of March, including 494,350, or 81%, from Mexico and large numbers from Guatemala, Honduras, Peru and South Korea.
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