- The 5th Circuit maintained the status quo of the DACA program for now.
- But it sent a recent effort to shore up the policy to a lower court for more review.
WASHINGTON – A federal appeals court Wednesday ruled that an Obama-era policy that protects undocumented immigrants brought to the United States as children violated federal law but it sent a Biden administration effort to shore up the program back to a lower federal court for further consideration.
The decision from a three-judge panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit sided with Texas and other conservative states that sued in 2018 but maintained the status quo for the Deferred Action for Childhood Arrivals program.
The court made clear it was not ruling on a new regulation created by the Biden administration in August in an effort to shore up the program from legal challenges. The appeals court sent the case back to federal district court to review that rule. The Obama-era memorandum at issue was already set to run out at the end of this month.
“There is no ‘clear congressional authorization’ for the power that DHS claims,” the appeals court said. “DACA violates the substantive requirements of the” federal law that prescribes how federal agencies are supposed to approve new policies, the court said.
Created by former President Barack Obama in 2012, the DACA policy halted deportations and granted work permits for certain immigrants who were brought to the country illegally as children – a group that became known as “Dreamers.” By 2018, more than 814,000 people had benefited from the policy, according to some estimates cited in court records.
“This incorrect ruling doesn’t take away anyone’s DACA protections today, but it allows state officials to continue their effort to end the program,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “As a result, Dreamers and their families will continue to live in uncertainty and fear that the limited protections they have could go away at any moment.”
Aides to Texas Attorney General Ken Paxton did not immediately respond to a request for comment.
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Supporters, including President Joe Biden, said the policy helped people who had no choice about entering the United States and had little connection to their home country. Critics said it forced taxpayers to shoulder the cost of social services for people who were in the country illegally.
A federal district court in Texas ruled last year that Obama violated federal law when he used an executive order to create the program, in part because the administration didn’t seek comments about its impact from the general public. The judge in that case suspended new DACA applications but allowed current enrollees to remain.
Former President Donald Trump unwound the DACA program in 2017 but in a case decided by the Supreme Court three years later, a 5-4 majority said the Republican president didn’t follow the law in ending the program. In that case, Chief Justice John Roberts joined with four liberal justices to allow the policy to continue.
But the high court’s membership has since shifted: Just two years later, conservatives now enjoy a 6-3 advantage and four of them have already signaled they have deep reservations about DACA. In the high court’s 2020 decision, Associate Justice Clarence Thomas said he believes the policy is unlawful. He was joined by Associate Justices Samuel Alito and Neil Gorsuch. Associate Justice Brett Kavanaugh wrote separately and decried Roberts’ ruling for continuing the uncertainty surrounding the program’s legal status.
The case will likely wind up at the Supreme Court, eventually.
The Biden administration has tried to strengthen the policy in response to the district court’s ruling. The Department of Homeland Security announced a new rule in late August that was intended to give DACA a more formal legal grounding than Obama’s original order. The department had, for instance, offered a more thorough explanation for the policy and sought public comment.
A Justice Department spokeswoman didn’t respond to a request for comment.