DACA ruled unlawful by federal appeals court, but program continues for now

A federal appeals court has upheld a prior ruling that the Obama-era Deferred Action for Childhood Arrivals program is unlawful, sending the case back to a lower court that will decide the legality of the program that includes more than 600,000 undocumented people.

The ruling means that the program is still in place and its participants are protected. However, DACA's future is uncertain until the next judicial step. No new participants will be enrolled.

President Biden issued a statement that he was “disappointed” in the Wednesday night ruling, and said the “decision is the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade.”

The president also called on Congress to “pass permanent protections for Dreamers, including a pathway to citizenship.”

CASA, the leading immigrants’ rights organization in the Mid-Atlantic, which is based in Langley Park, condemned the decision.

“This decision again shows that legislators must protect DACA holders and other immigrants facing dire uncertainty,” said Gustavo Torres, the group’s executive director. “With DACA, hundreds of thousands have graduated college, launched careers, and started families. Citizenship offers the only truly permanent relief that will end these constant battles in the courts and provide DACA recipients with the certainty they deserve.”

Nine Republican-led states challenged DACA. They argued that the White House overstepped its bounds in creating a program that should be left to Congress. The states also said they were harmed financially by incurring costs for DACA recipients’ health care and education.

These states include Texas, Alabama and Arkansas, Louisiana, Nebraska as well as South Carolina, West Virginia and Kansas.

Lower court decision

The Wednesday ruling upholds a lower court decision in the Southern District of Texas by U.S. District Judge Andrew Hanen, who ruled in July 2021 that the program was unlawful and prevented the government from accepting new DACA applications, but allowed the program to remain for current participants.

Hanen ruled that the Administrative Procedure Act was violated because the program was not open to public comment or notice.

A three-judge panel of the 5th Circuit Court of Appeals, based in New Orleans, ruled Wednesday that the Obama administration was not authorized to create the program in 2012. Hanen was remanded by the panel, who asked him to review the revised rule that the Biden administration issued in August on the program. It is due to take effect October 31.

“A district court is in the best position to review the administrative record in the rulemaking proceeding and determine whether our holdings as to the 2012 DACA Memorandum fully resolve issues concerning the Final Rule,” the judges, one appointed by President George W. Bush and two by President Trump, wrote.

The U.S. Department of Justice teamed up with New Jersey's immigration advocacy groups, corporations like Amazon and Google to support the program in July. They claimed that Dreamers have grown up there and are vital to the U.S. economic recovery.

DACA was established a decade ago to provide temporary relief for children brought into the country illegally. It allows them to obtain drivers licenses, work permits, and protects them from deportation.

The majority of the children in this program are now adults and their futures are uncertain.

Cindy Kolade, a DACA beneficiary from Baltimore, was born on Ivory Coast and said that she feels particularly vulnerable. Kolade, who is completing a bachelor’s degree, was an essential worker during the early days of the COVID-19 pandemic in the microbiology department of a local hospital.

“It’s again a scary time to be a DACA holder — a time where there are attempts to push us back into the shadows, as we are trying to push forward in our careers,” Kolade said. “We are essential workers, and have fought for this country during times of complete crisis because this is our home. We will not stop fighting until we are given the dignity we deserve.”

Secretary of U.S. Homeland Security Alejandro N. Mayorkas said in a statement that he was deeply disappointed by the ruling and that the agency is “currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response.”

He stated that DHS will continue accepting new and renewed DACA applications but will only process renewal requests.

“It is clear, though, that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients,” Mayorkas said.

‘Hanging by a thread’

U.S. House Democrats, immigration advocates and others worry that the program could be ending, leaving hundreds upon thousands of Dreamers without protections.

Sergio Gonzales, the executive director of the Immigration Hub, a group that lobbies for immigration and migration policy, said in a statement that DACA is “hanging by a thread.”

“The only question is when it will end,” Gonzales said of DACA. “The only realistic way to protect the 610,000 young people with DACA is for Congress to act by the end of the year.”

Despite Democrats controlling both chambers, Congress has not taken any action to create a permanent pathway for Dreamers to citizenship. To achieve a 60-vote threshold, a divided Senate would require all Democratic senators to be on board.

Representative Raul Ruiz (a California Democrat) is the chair of the Congressional Hispanic Caucus and has called on 10 Republican senators for legislation to provide a pathway to citizenship to Dreamers.

“Our Dreamers cannot wait,” he said in a statement. “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.”

Nancy Pelosi, the House Speaker (D-Calif.), criticized Republicans for continuing to block House bills that would provide permanent pathways to citizenship for Dreamers.

“Shamefully, extreme MAGA Republicans in the Senate have blocked this bill, playing political games with families’ futures while embracing an extreme agenda of anti-immigrant cruelty,” she said in a statement. “Senate Republicans must join us to immediately pass this urgent, necessary, House-passed legislation and send it straight to President Biden’s desk.”

Josh Kurtz contributed to the report.