Updated Oct 5, 2022 - Politics & Policy

Federal appeals court orders review of Biden's DACA final rule

Photo of two activists speaking while holding a T-shirt that says "#WithDACA"

Activist Indira Islas speaks at a news conference to mark the 10th anniversary of the Deferred Action for Childhood Arrivals program at the U.S. Capitol on June 15 in Washington, D.C. Photo: Anna Moneymaker via Getty Images

The 5th Circuit Court of Appeals on Wednesday affirmed a lower court decision declaring the Obama-era Deferred Action for Childhood Arrivals (DACA) program unlawful but allowed it to remain in place for existing DACA recipients for now.

Why it matters: More than 800,000 immigrants who were brought to the U.S. as children have been shielded from deportation through DACA, which has faced several legal challenges. The case now goes back to the lower court for review of the Biden administration's DACA final rule.

Details: The three-judge panel ruled that the 2012 memorandum issued to establish DACA violates statutory provisions regarding immigration. "The district court’s excellent opinion correctly identified fundamental substantive defects in the program," Chief Judge Priscilla Richman wrote in the 46-page opinion.

  • "DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits," Richman said. "Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them."
  • The 2012 memorandum, which remains in effect until Oct. 31, "contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization."
  • "In our view, the defendants have not shown that there is a likelihood that they will succeed on the merits," the opinion notes. "We also recognize that DACA has had profound significance to recipients and many others in the ten years since its adoption."
"Given the 'uncertainty of final disposition' and the 'inevitable disruption that would arise from a lack of continuity and stability,' we preserve the stay as to existing recipients."
— Chief Judge Priscilla Richman

What we're watching: The court declined to review the final rule for now, deferring to a district court.

What they're saying: Rep. Raul Ruiz (D-Calif.), chair of the Congressional Hispanic Caucus, said after the ruling that "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."

  • He called on 10 Senate Republicans to join Democrats in passing the American Dream and Promise Act, which would create a pathway to permanent residency for DACA recipients and has cleared the House.
  • "Our Dreamers cannot wait. We must modernize our broken immigration system, keep families together, strengthen our economy, provide pathways to citizenship, and live up to our nation's values of hope, opportunity, and the American dream."

The big picture: The final rule, issued in August, maintains existing criteria for DACA recipients — such as arriving in the U.S. by age 16 and before June 15, 2007 — as well as work permit authorizations.

  • It also declares DACA recipients "lawfully present" in the U.S. for certain purposes, including benefits, and moves to codify DACA into federal regulations in a bid to protect it from legal challenges.

Of note: Ten years after the program was first implemented, DACA recipients, and their allies, continue to push for immediate action on a pathway to citizenship.

Editor's note: This article has been updated with additional details throughout.

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