On October 5, 2022, the Fifth Circuit Court of Appeals ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful, but remanded the case to the lower district court to reconsider the legal challenge as it applies to the U.S. Department of Homeland Security’s (DHS) new DACA regulation.
The Court of Appeals affirmed the district court’s decision finding that the original program, which was created by a DHS memorandum in 2012, violated both procedural and substantive law, stating that “Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them. We agree with the district court’s reasoning and its conclusions that the DACA Memorandum contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization.”
The decision allows current DACA recipients to maintain and renew their DACA status and work authorization while the case is pending resolution in the district court. DHS, however, is prohibited from approving new (or “initial”) DACA applications. Despite this order, USCIS has decided to continue to accept initial applications, but will only process renewals while the court order is in effect. The final DACA regulation does not go into effect until October 31, 2022.
Background. By way of background, DACA provides immigration benefits, including lawful presence, employment authorization, and forbearance from deportation to certain aliens who are in the United States illegally. In addition to other eligibility criteria, these aliens must have been under the age of 31 on or before June 15, 2012 and have entered United States prior to 2007, thus making the eligible population between the ages of 26 to 42 years old.
In July 2021, the U.S. District Court for the Southern District of Texas ruled that DACA’s creation in 2012 via a three-page policy memorandum violated the notice-and-comment requirement under the Administrative Procedure Act (APA). The ruling went further, however, to hold that the program is also substantively invalid because DACA “is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.” The court explained, “While the law certainly grants some discretionary authority to the agency, it does not extend to include the power to institute a program that gives deferred action and lawful presence, and in turn, work authorization and multiple other benefits to 1.5 million individuals who are in the country illegally.”
While appealing this decision, DHS codified DACA by issuing a final regulation as an attempt to legitimize the program and strengthen the agency’s legal posturing. (The White referred to this as "preserving and fortifying" DACA.) Despite being bound by the district court’s ruling, DHS reached the incredible (and unlawful) conclusion that it can continue with rulemaking because it disagrees with the court. DHS acknowledged the full extent of district court ruling in a footnote in the proposed DACA regulation, writing “The district court in Texas II also concluded that ‘DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.’” Brazenly, DHS responded by stating, “The Department respectfully disagrees” and went on to reiterate the same view of DACA that the federal district court rejected in litigation.
The DACA Regulation Is Unlikely to Survive District Court’s Review. In its July 2021 decision, the district court signaled that a regulation codifying the program would not survive legal scrutiny so long as it continued to directly conflict with numerous federal statutes. The court explained that, “Against the background of Congress’ ‘careful plan,’ DHS may not award lawful presence and work authorization to approximately 1.5 million aliens for whom Congress has made no provision.” The district court determined that Congress has expressly not authorized DACA.
DACA is more than, as DHS purported in litigation, an exercise of prosecutorial discretion resulting from limited agency resources. Like the original program, DHS’s new DACA regulation ignores statutorily mandated removal proceedings and goes further to provide immigration benefits to aliens with no lawful access. Because the regulation leaves intact nearly all of the original program’s benefits and features, it is still subject to the same legal issues.
Furthermore, the new DACA regulation does nothing to fix the legal issues the district court found the program created by allowing DACA recipients to receive advance parole. Advance parole is a privilege that allows aliens to leave the United States and then lawfully re-enter the country without being turned away at a port of entry. It is designed to be awarded only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.
As explained in detail by the district court, by allowing DACA recipients to receive advance parole, the program (and now regulation) directly contradicts Congress’ scheme to restrict green card eligibility from aliens who have not been “lawfully admitted or paroled into the United States” and subverts the three- and 10- year bars Congress inserted into the Immigration and Nationality Act to prohibit aliens who have been unlawfully present in the United States for 180 days or 365 days, respectively, from reentering the country for three or 10 years. Because the district court recognized this conflict when analyzing the 2012 DACA memorandum, there is little reason to believe that the district court will find that the regulation, which expressly permits this practice, is valid.
DACA Is Bad Immigration Policy. The creation and maintenance of the DACA program is one of the strongest pull factors that have ignited modern border crisis. While the program currently limits eligibility to those who have resided in the United States since June 2007, the message being sent around the world is that illegal entry will be rewarded and unlawful presence will be wiped away by executive action.
As a result of the Biden administration’s commitment to maintaining DACA and dismantling immigration enforcement within the interior of the United States, U.S. Customs and Border Protection reported the greatest numbers of apprehensions at the Southwest border in the country’s history. Through the end of August, Border Patrol agents apprehended nearly two million aliens who entered the United States illegally over the Southwest border in FY 2022, and reported 1,659,206 apprehensions for FY 2021.
DHS Secretary Alejandro Mayorkas issued a press release shortly after the decision was issued, stating that he was “deeply disappointed” by the ruling, but acknowledged Congress’ role in providing “permanent protection” to DACA recipients. As of the end of March 2022, there are 611,270 people enrolled in DACA.