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Appeals court rules against program that protects ‘Dreamers’

The immigration program will remain in place for current recipients, with more court action to come

Students with the group Improve the Dream listen in May as Sen. Dick Durbin, D-Ill., and other lawmakers hold a news conference calling for bipartisan legislation to protect "Dreamers."
Students with the group Improve the Dream listen in May as Sen. Dick Durbin, D-Ill., and other lawmakers hold a news conference calling for bipartisan legislation to protect "Dreamers." (Drew Angerer/Getty Images)

A federal appeals court on Wednesday ruled against a decade-old program that protects hundreds of thousands of young undocumented immigrants who came to the country as children, paving the way for more court action on the long-disputed policy.

A three-judge panel for the U.S. Court of Appeals for the 5th Circuit decided that the Department of Homeland Security does not have the authority to provide protections to those immigrants under the Deferred Action for Childhood Arrivals program, or DACA.

The program, initially issued in 2012 under the Obama administration, offers deportation protections and work permits to more than 600,000 undocumented immigrants who came to the U.S. in 2007 or earlier when they were younger than 16.

The panel, which includes two judges appointed by President Donald Trump and one appointed by President George W. Bush, reasoned that the program violates Congress’ intent when it crafted the immigration statutes.

“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,” Judge Priscilla Richman wrote for the panel.

The court further concluded that the program, created via agency memo, was issued in violation of procedural rules requiring agencies to first consider public comments.

But the appeals court made clear it was not passing judgment on the administration’s final rule, issued in August, which put DACA through the full administrative process in an effort to strengthen the program against court challenges. That rule is set to take effect at the end of this month.

Instead, the 5th Circuit sent the case back to a lower court to consider that new rule. The Justice Department did not immediately respond to a request for comment on the decision and whether it would appeal the 5th Circuit’s decision to the Supreme Court.

The appeals court also said it would preserve a lower court order that has allowed current DACA recipients to continue renewing their protections. Richman wrote that the court recognizes the immigration program “has had profound significance to recipients and many others in the ten years since its adoption.”

Erika Andiola of the Young Center for Immigrant Children’s Rights, also a DACA recipient, said the decision leaves hundreds of thousands of people “anxiously awaiting yet another decision now from the same lower court that stopped first-time DACA applications from being accepted, that could end the program and leave us vulnerable to potential deportation.”

Not unexpected

The 5th Circuit’s decision was not unexpected. The appeals court previously ruled against an Obama-era effort to extend protections to the immigrant parents of American children. And the 5th Circuit panel seemed likely to side with the states in the current challenge during oral argument in July.

Republican-led states initially challenged the DACA program in Texas federal court years ago. In July 2021, U.S. District Judge Andrew Hanen sided with the states and found the Obama administration lacked the authority to carry out the program.

But Hanen, who was appointed by Bush, allowed current DACA recipients to continue renewing their protections, while halting the program for new applicants.

The 5th Circuit’s decision is the latest legal blow to the DACA program, which was initially intended as a temporary fix while Congress worked on passing legislation to protect those brought to the country undocumented as children.

Shortly after Trump took office, his administration attempted to rescind DACA, sparking public outcry and a mountain of legal challenges. And in June 2020, the Supreme Court ultimately ruled 5-4 to block the government from terminating the immigration program, reasoning it had not sufficiently considered the interest of those who rely on it.

But the high court did not consider DACA’s legality in that case.

If the high court eventually backs the 5th Circuit’s decision and ends the program for good, it could put hundreds of thousands of adults who have grown up in the U.S. out of work and at risk of deportation.

It could also spark action in Congress, which has so far remained gridlocked against efforts to pass legislation to revise the U.S. immigration system.

The Democrat-controlled House of Representatives passed a bill last year that would put DACA recipients and others on a path to citizenship, but the tightly divided Senate has yet to take up the measure, with just weeks left on the congressional calendar.

Democrat-led efforts last year to include a path to citizenship for this population in the party’s sprawling climate and social spending proposal — which was later pared back and passed earlier this year — have also come up short.

Sen. Alex Padilla, D-Calif., who heads the Senate Judiciary Committee’s immigration panel, said the court ruling “underscores the need for Republicans to work with Democrats to swiftly take up and pass legislation.”

Several House Democrats called out their Senate colleagues for failing to act on House-passed legislation to protect this population.

“Today, DACA recipients can breathe a sigh of relief, but the urgency remains to pass a permanent solution that brings stability to the lives of DACA recipients,” said Rep. Raul Ruiz, D-Calif., chairman of the Congressional Hispanic Caucus, through a spokesperson.

On Twitter, Rep. Zoe Lofgren, D-Calif., who leads the House Judiciary Committee’s immigration panel, called the ruling “an important reminder that the Senate needs to act ASAP to deliver permanent protections for all dreamers.”

Kerri Talbot, deputy director of Immigration Hub, an immigrant advocacy group, said she hopes to see Democrats and Republicans “cut a deal” during Congress’ lame-duck period between midterm elections and the end of this session.
“I think it’s just imperative that Congress acts as soon as possible,” Talbot said. “This program is hanging by a thread. It’s ultimately going to be terminated in the courts. And our only solution here is to have Congress pass a permanent path to citizenship.”

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