DACA remains intact as appeals court sends case challenging its legality back to lower court in Texas

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A federal appeals court on Wednesday sent a case challenging the legality of Deferred Action for Childhood Arrivals, or DACA — a national program that provides some undocumented immigrants work permits and temporarily protects them from deportation — back to a lower court in Texas.

A three-judge panel of the 5th U.S. Circuit Court of Appeals said in its ruling that it agreed with the lower court that the implementation of DACA in 2012 was illegal — but it will keep the program in place while the lower court analyzes the latest rule the Biden administration implemented in an effort to save the program from future legal challenges.

Anticipating a loss in the appeals court, the Biden administration in August codified DACA into regulatory law and rescinded the 2012 memo by then-U.S. Department of Homeland Security Secretary Janet Napolitano that originally created DACA. The legal move was aimed at countering the July 2021 lower court ruling by U.S. District Judge Andrew Hanen of Houston, who said the Obama administration had illegally implemented DACA.

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

Wednesday’s ruling will continue to allow current DACA recipients to renew their status but still prevents first-time applicants from being accepted into the program.

DACA survived an attempt by the Trump administration to end it when the Supreme Court ruled in June 2020 that the administration had done so improperly and restored the program.

Meanwhile, Texas and eight other states filed a separate lawsuit in 2018 challenging the program’s constitutionality and argued that the Obama administration exceeded its authority by creating an immigration program without congressional approval. The lawsuit has led to a yearslong legal battle.

As part of Hanen’s order in that lawsuit, immigration officials could process DACA renewals but had to stop accepting new applications for the program, which defers deportation for qualifying immigrants who were brought to the country as children before 2007 and provides them with a renewable two-year work permit. Applicants must be high school students or high school graduates and cannot have a serious criminal history.

The program has approved more than 800,000 people over the past decade, including 101,000 current DACA recipients who live in Texas. Across the country, 93,000 first-time applicants have had their DACA applications halted as a result of Hanen’s ruling.

The Biden administration appealed Hanen’s order to the 5th Circuit Court of Appeals, which heard arguments from both sides in July.

DHS Secretary Alejandro Mayorkas said in a statement on Wednesday that he is “deeply disappointed" by the ruling and “the ongoing uncertainty it creates for families and communities across the country.”

“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,” he said.

Erika Andiola, a DACA recipient and communications director at the Young Center for Immigrant Children’s Rights, said Congress and President Joe Biden need to approve the permanent legalization of DACA recipients because the program has been the subject of multiple legal challenges.

“For hundreds of thousands of DACA recipients like me, moments like these that are spent waiting for breaking news about our lives and futures never get any easier,” she said, adding, “Still, hundreds of thousands of people are left anxiously awaiting yet another decision now from the same lower court that stopped first-time DACA applications from being accepted, that could end the program and leave us vulnerable to potential deportation.”