On October 6, 2022, the U.S. Court of Appeals for the 5th Circuit ruled against Deferred Action for Childhood Arrivals (DACA), upholding an earlier decision from U.S. District Judge Andrew Hanen that the policy is unlawful.
In line with the lower court decision, the three-judge panel unanimously found that the 2012 Department of Homeland Security (DHS) Memorandum that established DACA violated the Administrative Procedure Act (APA) on both procedural and substantive grounds. Specifically, the 5th Circuit determined that Texas had standing to sue on the basis of experiencing increased healthcare, education, and social services costs related to DACA, and further determined that the DACA Memorandum was inconsistent with the statutory scheme regulating immigration and naturalization set out in the Immigration and Nationality Act. It additionally rejected the argument that DACA was a valid use of DHS’s prosecutorial discretion. In so doing, the 5th Circuit was careful to note its decision, as well as that of the district court, “do[ ] not require the removal of any DACA applicant” or anyone else.
In finding the 2012 version of DACA unlawful, the 5th Circuit declined to review a new final rule on DACA issued by the Biden administration in August 2022 that was intended to fortify the legal footing of the policy. Instead, the panel remanded the case to again be considered by Judge Hanen.
While the 2022 final rule went through formal notice-and-comment rule making and presumably satisfies the procedural requirements of the APA, on remand, Judge Hanen will evaluate whether the final rule violates the substantive requirements of the APA. Specifically, he will consider whether there are material differences between DACA as set out in the 2022 final rule versus DACA as set out in the 2012 Memorandum and whether those differences address the substantive concerns raised by the 5th Circuit. Because the new rule largely retained the structure and eligibility requirements of the original DACA policy, it is likely that Hanen will find the new rule to be unlawful.
What it Means for DACA Recipients and Other Dreamers:
Even as it found the 2012 Memorandum unlawful and determined that it was unlikely that the Biden administration would ultimately prevail on the merits of the case, the 5th Circuit provided a temporary respite to approximately 600,000 current DACA recipients. Consistent with Judge Hanen’s previous decision, the 5th Circuit continued to stay the injunction that would end DACA for current DACA recipients.
This means that current DACA recipients temporarily will retain protection from deportation and work authorization, as well as the ability to renew these protections, while the litigation continues – including a likely appeal to the U.S. Supreme Court. In so doing, the 5th Circuit emphasized the reliance interests that current DACA recipients possess in these protections, citing the 2020 Supreme Court case that faulted the procedure used by the Trump administration as it attempted to end DACA, allowing the policy to survive.
Yet, the renewal of the stay has limited impact. The 5th Circuit ruling continues to bar new applicants from having their petitions adjudicated. Dreamers currently without DACA will not benefit from the policy’s protections, including those who would have been eligible for protections and those who have submitted new applications that have not been processed. And given the likelihood that the district court will find the 2022 DACA rule to be unlawful and a skeptical Supreme Court will uphold lower court rulings ending the policy, current DACA recipients, as well as their families, communities, and remain in limbo.
Next Steps in Litigation:
With the new rule on DACA slated to take effect on October 31, 2022, it is likely that Judge Hanen will rule on its legality before the end of October. And, as explained above, the similarity of the new rule to the existing DACA policy makes it likely that the new rule will be found to be unlawful.
The Biden administration, along with the other defendants in the litigation, is likely to appeal the decision to the U.S. Supreme Court this fall. If the Supreme Court takes the case this term, a final ruling could be issued in Spring 2023. If the Court does not take up the appeal until the following term, a decision may not come out until late 2023 or Spring 2024.
While the Supreme Court split 4-4 in 2016 to uphold a 5th Circuit decision striking down a similar deferred action-based policy and ruled 5-4 in 2020 to find fault with the procedure used by the Trump administration when it attempted to end DACA in 2017, the Court is likely to find DACA to be unlawful. Given the shift in the makeup of the court since 2020, as well as language in Chief Justice Roberts’ 2020 majority opinion that declined to rule on the legality of DACA itself, it appears likely (although not certain) that 5 or 6 justices will hold DACA to be unlawful.
The Biden administration has limited options to use executive power to preserve existing Dreamer protections. On a number of occasions, federal courts have halted various administration actions related to immigration, including an immigration enforcement “pause,” new immigration enforcement priorities, plans to lift the Title 42 health policy at the border, and a phase-out of the Migration Protection Protocols (MPP) (the Supreme Court ultimately allowed the latter to move forward).
Given this history and the 5th Circuit decision demonstrating skepticism towards providing relief to classes of DACA recipients, federal courts appear likely to disfavor subsequent executive actions that seek to carry out DACA-type protections.
As has long been the case, Congress will need to act to provide certainty for DACA recipients and other Dreamers and insulate their protections from ongoing court challenges. By passing legislation to provide a permanent solution, including a pathway to citizenship for Dreamers, Congress can enshrine these needed protections into federal law.