An immigration activist participates in a rally near the U.S. Supreme Court as they demonstrate to highlight immigrant essential worker rights, on May 12, 2021, in Washington, DC. (Photo by Kevin Dietsch/Getty Images)
WASHINGTON — 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 the program remains for now and those in it are still protected, but the future of DACA is up in the air pending the next judicial step. No new participants are being enrolled.
President Joe 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.”
Nine Republican-led states challenged DACA, arguing that the White House overreached in creating a program that should have been left to Congress. The states also said they were harmed financially by incurring costs for DACA recipients’ health care and education.
Those states are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.
Mireya Reith, executive director of immigrant advocacy group Arkansas United and co-chair of the national FIRM Action immigration reform group, called the decision a disappointing setback.
“After more than a decade of immigrant youth organizing and fighting to win DACA, the promise of protection has allowed our community to have children, steady employment, educational advancements, homeownership, and more,” Reith said. “These are real lives that are being impacted. While the stay will continue to protect current DACA recipients, no one should be living from court decision to court decision. Ending DACA would have a devastating impact on DACA holders and all of our families, employers, and communities.”
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 decided that because the program was not subject to public comment or notice, it violated the Administrative Procedure Act.
In the Wednesday decision, a three-judge panel from the 5th Circuit Court of Appeals, headquartered in New Orleans, said that the Obama administration did not have the authority to create the program in 2012. The panel sent the case back to Hanen, asking the judge to look at the new version of a rule on the program issued by the Biden administration in August, which is set to take effect Oct. 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 Donald Trump, wrote.
In July, the U.S. Department of Justice, allied with the state of New Jersey, immigration advocacy groups and corporations like Amazon and Google, argued for the program, saying that Dreamers have grown up in it and become vital to the U.S. economy.
DACA was created a decade ago with the aim of providing temporary relief for children who were brought into the country unlawfully, allowing them to obtain drivers licenses and work permits and protecting them from deportation.
Most of the children in the program are now adults, and their futures remain in limbo.
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 said that DHS will continue to accept new and renewed DACA applications, but will only process the 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 and immigration advocates worry that the program is in danger of ending, leaving hundreds of 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.”
Congressional action on making a permanent pathway to citizenship for Dreamers is stalled, and is unlikely to change despite Democrats controlling both chambers. An evenly divided Senate would need all Democratic lawmakers on board plus an additional 10 Republicans to meet a 60-vote threshold to advance past a filibuster.
The Congressional Hispanic Caucus chair, Rep. Raul Ruiz, a California Democrat, called on 10 Republican senators to pass legislation providing a pathway to citizenship for 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.”
House Speaker Nancy Pelosi blasted Republicans for continuing to block House-passed bills that would provide a permanent pathway 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.”
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