Appeals court sends DACA case back to lower court to review Biden’s new rule, temporarily shielding dreamers

A federal appeals court on Wednesday granted a temporary reprieve to hundreds of thousands of young immigrants enrolled in a program allowing them to work and study in the United States without fear of deportation, but it is unclear how many time it will last.

The 5th U.S. Circuit Court of Appeals ruling orders the lower court judge who found the decade-old Deferred Action for Childhood Arrivals program was unlawful to consider a new rule issued by the Biden administration. This allows the program to move forward, but only for current DACA recipients known as Dreamers, not new applicants.

Revising the rules could preserve DACA for at least several more months, but its future is far from assured, especially given the current, more conservative makeup of the Supreme Court.

The Biden administration has prepared contingencies in case the courts shut down the program. White House insiders said BNC News that President Joe Biden was preparing an executive order directing Immigration and Customs Enforcement not to prioritize the removal of DACA recipients and to refrain from deporting them if they are not deemed a threat to the public safety or national security. This action, however, is temporary and could be undone by another president.

In August, the administration also announced a new rule, which goes into effect Oct. 31, to codify DACA and address some of the concerns the Supreme Court has expressed about the program. The rule is what the appeals court asked a Texas federal judge to consider.

Rep. Raul Ruiz, D-Calif., the head of the Congressional Hispanic Caucus, said in a statement Wednesday that DACA recipients could “heave a sigh of relief,” but added that “the urgency remains to adopt a permanent solution that brings stability to the lives of DACA recipients.

President Barack Obama created DACA by executive order in 2012 out of frustration with congressional inaction on immigration reform. The program established a way for young migrants brought to the United States as children, who are often called Dreamers based on legislation never passed in Congress called the DREAM Act, to study and work without fear of to be expelled.

But President Donald Trump, who had sometimes welcomed these young people despite campaign promises to crack down on illegal immigration, announced in September 2017 that he was ending the program, and he called for a permanent version of the program as part of of a “” overhaul of immigration. “Congress, get ready to do your job – DACA!” he tweeted.

Congress failed to reach an agreement, and proponents of the program filed a lawsuit to block its termination.

In June 2020, the Supreme Court ruled in favor of the lawyers in a 5-4 decision. Swing vote Chief Justice John Roberts sided with liberal justices, saying Trump administration broke laws governing federal agencies when he ended DACA in 2017 because the memorandum that recommended ending it did not address the crucial parts of the policy. Roberts pointed out toward the end of his op-ed that DHS might just reconsider its legal strategy on how to untie DACA in the future.

Meanwhile, Texas, home to more than 100,000 people enrolled in the DACA program, has pursued a lawsuit it filed in 2018, with support from other Republican-run states, alleging the program is illegal. Texas has also alleged that the program is harmful because it allows DACA recipients to compete with citizens for jobs and leaves the state liable for some health care, education and social service costs.

Immigration advocates have countered that states have not provided enough evidence about the nature of these costs and that states should pay them regardless. The states also failed to consider how “state-resident DACA recipients outweigh the additional revenue the states receive from their taxes and contributions to the public (including through their work as health professions, educators and other service jobs),” advocates deposit said.

In his July 2021 decision, U.S. District Judge Andrew Hanen of Houston sided with the states, ruling that DHS lacked the authority to implement DACA and that the program was illegal. He suspended parts of his ruling pending appeal, allowing DHS to process DACA renewal applications but barring approval of new applicants.

Hanen noted in his ruling that DACA recipients have garnered public sympathy.

“Many came to this country illegally or stayed in this country without permission through no fault of their own,” he wrote. “Furthermore, according to numerous amicus briefs, the DACA population is generally well-educated and in a better position to contribute to the well-being of this nation than other immigrant populations. As a group, they are law-abiding and hold positions of responsibility, despite their youth. These factors make the DACA population a much more attractive and likeable group. While these may be compelling policy justifications for DACA, they can have no effect on the legal conclusion of this tribunal.

“As popular as this program may be, the appropriate starting point for the DACA program was, and is, Congress,” Hanen added.

After the appeals court ruling, advocates like Sergio Gonzales urged Congress to take immediate action.

“With the direction of the courts clear, options for executive action limited, and a change in the makeup of Congress possible, we want to be crystal clear: the only realistic way to protect the 610,000 young people with CADD is for Congress to act in end of the year,” Gonzales, the executive director of the Immigration Hub, said in a statement.

“Any savvy Republican left in Congress should return to the pragmatism of former GOP leaders like John McCain and do what is in the best interest of the country,” he said.

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