Fifth Circuit: DACA is Unlawful, Allows Renewals but No New Applicants

The Fifth Circuit Court of Appeals ruled Wednesday that the Deferred Action for Childhood Arrivals (DACA) deportation amnesty is unlawful. However, the court did agree to preserve the program for existing recipients, allowing them to renew their temporary DACA status.

The three-judge panel of the 5th Circuit upheld a July 2021 ruling from Texas federal judge Andrew Hanen who stated that the Obama admin. had no authority to impose DACA through a series of executive memos.

Wednesday’s decision blocked the current admin. from enrolling new illegal aliens, meaning they can not be issued work permits or be shielded from deportation. However, the court did preserve the unlawful program for current beneficiaries, allowing nearly 600,000 to renew their status.

Chief Judge Priscilla Richman wrote:

In our view, the defendants have not shown that there is a likelihood that they will succeed on the merits. We also recognize that DACA has had profound significance to recipients and many others in the ten years since its adoption.

According to reporting by National Review, “Richman returned the case challenging the legality of the policy back to a lower court in Texas to examine a recent rule the Biden administration implemented in a maneuver to protect the program from litigation.”

The recent rule by the Biden admin. codified DACA into regulatory law this August and revoked the 2012 memo considered in Judge Hanen’s original decision. Due to the 5th Circuit’s ruling, the Biden admin. is expected to file a formal appeal, which could bring the DACA case before the United States Supreme Court, most likely in its next session.

Currently, the DACA program rewards approximately 600,000 illegal aliens with work permits and protection from deportation, ‘Dreamers’ or aliens protected under the unlawful program had to prove that they arrived in the country by age 16 and before June 2007, must attend or have graduated from high school, and cannot have a serious criminal record. Additionally, alien Dreamers are also not entitled under the program to be given permanent legal status or citizenship.

Below is the response to the 5th Circuit’s decision by Secretary of Homeland Security Alejandro N. Mayorkas:

I am deeply disappointed by today’s DACA ruling and the ongoing uncertainty it creates for families and communities across the country. We are currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response.

As a result of the stay that remains in place, no one who currently has DACA will lose their protection from removal or work authorization. Consistent with that stay, DHS will continue to accept the filing of both initial and renewal DACA applications, but will process only the DACA renewal requests.

In August, DHS issued a final rule to preserve and fortify DACA, recognizing that it has transformed the lives of so many Dreamers who have enriched our nation through their contributions. It is clear, though, that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients. I urge Congress to swiftly pass legislation to provide permanent protection to the hundreds of thousands of Dreamers who call the United States home.

You can read the complete story here.