DACA Hanging By a Thread After Fifth Circuit Ruling

DACA Hanging By a Thread After Fifth Circuit Ruling

The program’s future Deferred Actions for Childhood Arrivals (DACA) program is on the line following the rulings of the U.S. Fifth Circuit Court of Appeals.

People who are protected from exile in the context of DACA (known by the name DREAMers) are on a shaky situation for many years. While the Biden administration has taken steps to formalize the program do they have enough power to get over the legal hurdles DACA has to face?

Rapid Refresh

The DACA program came into being in 2012 through a 3-page memo from the Obama administration, which the courts have not so cleverly dubbed “the DACA memorandum.” In the memo, former Homeland security secretary Janet Napolitano instructed U.S. Customs and Border Patrol to “defer” (meaning that they should not delay) to deport a few individuals who had entered in the U.S. illegally as children.

According to this policy, people that were less than 30, and also met the other conditions (such that they did not have an arrest record) weren’t just protected from deportation. They could also obtain work permits or be eligible for federal benefits.

In 2017 The Department of Homeland Security under the then-President Donald Trump attempted to rescind DACA partially because of the prior Fifth Circuit decision that prevented the Obama administration from expansion of the program. In 2020 Supreme Court of the United States ruled that U.S. Supreme Court ruled that the Trump administration had not provided an adequate reason for the end of DACA which would be in compliance with that requirement of the Administrative Procedures Act.

The issue was, however, in no way resolved.

Latest Challenges

In the meantime, some litigated against DACA’s suspension however, other states also filed another lawsuit, alleging that DACA could not have been in place at all. In the summer of 2021, U.S. District Judge Andrew Hanen declared that the DACA memo (and consequently the DACA program that it established) was illegal.

After an appeal filed of the Biden administration On appeal by the Biden administration, the Fifth Circuit earlier this month was in agreement, pointing out the DACA memo’s inability to provide “notice or comment” as the most important concern.

The APA obliges agencies to post draft regulations within the Federal Register and allow interested people to offer suggestions on the proposed rule. But, federal agencies are able to make policy statements with no notification or comment.

The panel concluded that, even though certain aspects of DACA is a non-binding policy that does not enforce immigration agents, it “imposes obligations and rights.” In essence, DACA’s affirmative relief for immigrants pushes it into rule-of-law territory.

DHS released a regulation that codified the DACA program in January of this year, following Hanen’s decision , and also following oral arguments in front of the Fifth Circuit. However, the Fifth Circuit declined review of the proposed rule, claiming it was in no position to review it.

In the end, the panel agreed with Hanen’s decision and sent this case back for the District Court. This rule, which didn’t follow notice and reply procedure, will take effect on the last day of this month.

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