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Fifth Circuit Affirms Lower Court’s Ruling Against DACA But Remands to Lower Court in Light of New DACA Regulation and Preserves Status Quo for Current DACA Beneficiaries

On October 5, the U.S. Court of Appeals for the Fifth Circuit upheld a lower court’s finding that the Department of Homeland Security’s 2012 memorandum establishing the Deferred Action for Childhood Arrivals (DACA) program is substantively and procedurally unlawful, but the Court of Appeals has returned the case to the lower court to consider the legality of the DACA regulation recently promulgated by the Biden Administration. The Fifth Circuit’s ruling preserves the current stay that allows current DACA beneficiaries to continue to maintain and renew DACA status.

A closer look

A three-judge panel of the U.S. Fifth Circuit Court of Appeals has voted unanimously to uphold the 2021 ruling of a Federal District Court in the Southern District of Texas enjoining the DACA program and vacating the 2012 Department of Homeland Security (DHS) memorandum establishing the program. The Fifth Circuit agreed with the lower court’s finding that the DACA program violated the Administrative Procedure Act both procedurally and substantively, because the program did not go through notice-and-comment rulemaking and was, in the court’s view, inconsistent with the Immigration and Nationality Act.

However, the Fifth Circuit noted that the Biden Administration has recently promulgated a DACA regulation, and the Court of Appeals therefore returned the case back to the District Court to consider the legality of the recently issued DACA regulation. That regulation, which is slated to take effect on October 31, 2022, preserves the main aspects of the original DACA program established by the 2012 DHS memorandum.

In addition, the Fifth Circuit agreed to maintain the current stay that temporarily preserves the program for current DACA beneficiaries. The court ordered the stay to remain in effect pending further order from the Fifth Circuit or the U.S. Supreme Court.

Impact on current DACA beneficiaries

As a result of the stay, existing DACA beneficiaries retain their current deportation relief and employment authorization. In a statement released today, DHS confirmed that it will continue to accept and process renewal applications from current DACA beneficiaries.

Impact on foreign nationals seeking initial DACA benefits

The Fifth Circuit’s decision continues to prohibit DHS from granting new or pending initial DACA applications. Although DHS’s statement confirms that it will continue to accept applications for new initial DACA benefits, DHS cannot process those applications and must hold them in abeyance unless the stay is subsequently broadened to include those applications or the DACA program is ultimately upheld in a subsequent stage of the litigation.

What’s next

According to its statement today, DHS is “currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response.” In the meantime, current DACA beneficiaries remain protected by the continuation of the stay.

Legislation that would provide permanent relief for Dreamers has been introduced in Congress, but the prospects for passage are uncertain.

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