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DACA Hanging By a Thread After Fifth Circuit Ruling

By Laura Temme, Esq. on October 13, 2022 4:03 PM

The future of the Deferred Action for Childhood Arrivals (DACA) program hangs in the balance following a series of rulings in the U.S. Fifth Circuit Court of Appeals.

Those who qualify for protection from deportation under DACA (known as DREAMers) have been on uneven footing for years. And while the Biden administration made moves to codify the program, will that be enough to overcome the legal challenges DACA faces?

A Quick Refresh

The DACA program sprung into existence in 2012 via a three-page memo issued by the Obama administration that the courts have not-so-creatively nicknamed "the DACA memorandum." In that memo, then-Homeland Security Secretary Janet Napolitano instructed U.S. Customs and Border Patrol to "defer" (meaning: don't) the deportation of certain individuals who entered the U.S. illegally as children.

Under this policy, individuals who were under 30 and met the other requirements (such as not having a criminal record) were not only protected from deportation but could also get work permits and apply for certain federal benefits.

In 2017, the Department of Homeland Security under then-President Donald Trump attempted to rescind DACA, partly based on an earlier Fifth Circuit decision that prevented the Obama administration from expanding the program. However, in 2020, the U.S. Supreme Court ruled that the Trump administration did not offer a sufficient rationale for ending DACA that would satisfy the Administrative Procedures Act.

But the issue was by no means settled.

Latest Challenges

While some litigated DACA's rescission, several other states filed a new lawsuit, claiming DACA should have never been implemented at all. In July 2021, U.S. District Judge Andrew Hanen ruled that the DACA memorandum (and, therefore, the program it created) was unlawful.

On appeal by the Biden administration, the Fifth Circuit earlier this month agreed, pointing to the DACA memo's lack of "notice and comment" as the primary issue.

The APA requires agencies to publish proposed rules in the Federal Register and allow interested parties to submit feedback on the proposed rule. However, federal agencies can issue policy statements without notice and comment.

The panel held that although part of DACA is a passive policy of non-enforcement for immigration agencies, it also "imposes rights and obligations." Essentially, the program's affirmative immigration relief pushes it into substantive rule territory.

DHS issued a regulation codifying the DACA program earlier this year — following Hanen's decision and after oral arguments took place before the Fifth Circuit. But the Fifth Circuit declined review of the new rule, finding it lacked jurisdiction to do so.

Instead, the panel affirmed Hanen's opinion and remanded the case to the district court. The rule, which did go through notice and comment procedures, takes effect at the end of this month.

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