Federal Appeals Court Rules That DACA Program Is Illegal, Orders Review of Biden’s Final Rule

Current beneficiaries remain unaffected

Illegal immigrants, most from Honduras, walk toward a U.S. Border Patrol checkpoint after crossing the Rio Grande from Mexico near Mission, Texas, on March 23, 2021. John Moore/Getty Images

A federal appeals court on Wednesday ruled that the Deferred Action for Childhood Arrivals (DACA) program, which shields certain immigrants who came to the United States illegally as children from deportation, is illegal.

The ruling by the 5th Circuit Court of Appeals on Wednesday (pdf) affirms a decision in July 2021 by a Texas federal judge—U.S. District Judge Andrew Hanen—who declared the DACA program illegal and blocked new applications but kept the policy intact for current beneficiaries. The appeals court similarly left the DACA program intact for current beneficiaries, which means current DACA recipients can continue to file renewal applications.

The appeals court on Wednesday also sent the case back to Hanen to have him review a revised set of rules that the Biden administration announced in August, to determine its legality.

The Biden administration’s new final rule to “preserve and fortify” DACA codifies the existing policy, with limited changes, into federal regulation. It was subject to public comments as part of a formal rule-making process intended to improve its chances of surviving lawsuits challenging it. It’s set to be effective Oct. 31 to replace the 2012 Department of Homeland Security (DHS) memorandum that had created DACA.

The latest court decision comes as part of an ongoing lawsuit filed by Texas and other Republican-controlled states in 2018 that argued that the Obama administration lacked the authority to create DACA.

Policy Not Authorized by Congress: Rulings

Since its creation in 2012, DACA has granted an estimated 800,000 illegal immigrants protection from being deported from the United States. The immigration program was established via a DHS memorandum in 2012, under President Barack Obama’s administration. It gives eligible recipients, known as “dreamers,” a renewable, two-year reprieve from deportation, as well as work authorization and access to social security.

In 2017, President Donald Trump announced he would rescind DACA, but court rulings and the Biden administration have kept DACA in place.

Hanen, in his decision in July declaring DACA illegal, had stated that DACA goes against the Constitution given that Congress never provided the executive branch authorization to grant deportation reprieves to illegal immigrants in the United States.

Chief Judge Priscilla Richman of the 5th Circuit of Appeals wrote in the opinion on Wednesday: “The district court’s excellent opinion correctly identified fundamental substantive defects in the program. The DACA memorandum contracts significant parts of the [Immigration and Naturalization Act].”

She added: "DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits. Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them.

“We agree with the district court’s reasoning and its conclusions that the DACA Memorandum contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization.”

In sending the case back to the lower court, Richman wrote: “A district court is in the best position to review the administrative record in the rulemaking proceeding and determine whether our holdings as to the 2012 DACA Memorandum fully resolve issues concerning the Final Rule.”

The Justice Department under the Biden administration did not immediately signal whether it would appeal the latest decision. If it files a formal appeal, the case would go to the U.S. Supreme Court.