DACA Case Returns to Fifth Circuit as Uncertainty Looms for 535,000 Recipients

Roberto Martinez, a DACA recipient, speaks outside the Supreme Court after the nation's highest court blocked President Donald Trump from ending the program, in Washington on June 18, 2020. Drew Angerer/Getty Images

A federal appeals court will hear arguments on a high-stakes case that could determine whether hundreds of thousands of people will lose their ability to work and remain in the United States.

On Oct. 10, the Fifth Circuit Court of Appeals will revisit the case challenging Deferred Action for Childhood Arrivals (DACA), which since 2012 has shielded more than 830,000 people who came to the United States illegally as children from deportation and provided them with renewable work permits.

The prolonged legal battle over the fate of DACA, which was promulgated through executive action by President Barack Obama and never approved by Congress, dated back to 2018 when Texas and eight other Republican-led states filed a lawsuit, arguing that the Obama administration had overstepped its authority to create an immigration program without congressional consent.

In July 2021, U.S. District Judge Andrew Hanen ruled in favor of the states, declaring DACA unlawful. However, he stopped short of terminating the program, saying that “hundreds of thousands of individual DACA recipients, along with their employers, states and loved ones, have come to rely on the DACA program.”

As part of Hanen’s ruling, federal immigration officials could continue processing DACA renewals, but they are barred from accepting first-time applications.

The Biden administration appealed the decision, and in October 2022, the Fifth Circuit agreed with Hanen that Obama’s 2012 memo creating DACA was unlawful. Still, it allowed current DACA recipients to continue renewing their status and sent the case back to the district court to assess the impact of a Biden administration policy that incorporated DACA into the federal regulations.

Shortly thereafter, Hanen ruled against the 2022 DACA regulation, but again fell short of ordering an immediate end to the program. The federal government has since appealed, and the case is now once again before the Fifth Circuit.

It is unlikely the three-judge panel will issue a ruling immediately following the October 10 oral arguments. A decision could take weeks or even months, and any outcome is likely to be appealed to the U.S. Supreme Court.

If that happens, it would be the second time in four years that the legality of DACA is heard by the nation’s highest court. In June 2020, the Supreme Court ruled 5–4 to preserve DACA, finding that President Donald Trump’s administration had acted arbitrarily in his efforts to terminate the program.

Mexican American Legal Defense and Educational Fund (MALDEF), a nonprofit legal group representing DACA recipients in the case, expects the Supreme Court to take up the case during its October 2025 term. However, if the Fifth Circuit issues a ruling sooner, the case could be heard as early as the current term, with a decision by June 2025.

“It’s important to note that even if the Fifth Circuit rules DACA is unlawful, it won’t necessarily order an immediate end to DACA, but could permit current recipients to continue to renew,” MALDEF said on its website.

According to the latest data from U.S. Citizenship and Immigration Services (USCIS), more than 535,000 people in the United States have active DACA status as of June. Most recipients are between the ages of 31 and 40.

The vast majority of DACA recipients are from Mexico, with around 81 percent (433,840) born there. El Salvador, Guatemala, Honduras, and Peru round out the top five countries of origin.

DACA beneficiaries are spread across the United States but are heavily concentrated in states that are traditional immigrant destinations. California (150,090) and Texas (89,360) together account for 44 percent of all DACA recipients, followed by Illinois (28,330), New York (21,250), and Florida (21,170). These top five states have remained unchanged since 2017.

At the local level, the Los Angeles metropolitan area has the largest concentration of DACA recipients, with over 10 percent living there. Other major metroplexes, such as New York, Dallas, Houston, and Chicago, each host around 30,000 DACA participants.

While DACA protects recipients from deportation and provides work authorization, it does not offer a pathway to permanent residency or U.S. citizenship. According to the USCIS, DACA is not a lawful immigration status but rather classifies recipients as low-priority for removal.

“Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship,” the USCIS said on its website. “Only Congress, acting through its legislative authority, can confer these rights.”