Fifth Circuit Hands Down DACA Decision, Remands Case for Lower Court to Consider Biden Administration Final Rule

Last year, a Texas federal district court judge ruled that the Deferred Action for Childhood Arrivals (DACA) program was unlawful because former DHS Secretary Janet Napolitano created it through a written memorandum instead of the formal agency rulemaking process. Nonetheless, the federal judge allowed DACA to continue temporarily for those already enrolled in it, pending the federal government’s appeal to the U.S. Court of Appeals for the Fifth Circuit.

In August 2022, the Biden administration released the final version of an agency rule to codify and strengthen DACA, intending to protect the program from further legal challenges. The rule was issued through the formal administrative rulemaking process and was subject to a period of public comment, which appears to address at least one of the grounds on which the federal courts found the DACA program invalid. The final rule is set to go into effect on October 31, 2022.

On October 5, 2022, a three-judge panel of the Fifth Circuit issued an opinion affirming the district court’s ruling finding DACA unlawful. However, the Fifth Circuit remanded the case to the district court to further consider the Biden administration’s new rule without immediately shutting down the program. Likewise, upon remand, the federal district court judge allowed DACA to continue in its current form temporarily. In other words, current beneficiaries of the DACA program can continue to enjoy its benefits, but the federal government cannot approve new DACA applications.

As a result, the federal district court judge now must evaluate the legal validity of DACA in light of the Biden administration’s final rule. While current DACA recipients will maintain their status temporarily, the permanency of the program remains to be seen in the absence of future legislation authorizing the program.

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