NEW ORLEANS (AP) – A federal appeals court on Wednesday ordered a lower court review of the Biden administration’s revisions to a program that prevented the deportation of hundreds of thousands of immigrants brought to the United States as children.
The 5th US Circuit Court of Appeals said a federal district judge in Texas should revisit the program after revisions adopted in August. The decision, for now, leaves the future of the Postponement of Action for the Arrival of Children unclear.
“It seems the status quo for DACA remains,” said Veronica Garcia, an attorney for the Center for Immigrant Legal Resources, an advocacy organization.
DACA was adopted by the administration of former President Barack Obama and has a complicated journey through federal court challenges.
Texas-based US District Judge Andrew Hanen last year declared DACA illegal. He found that the program was not subject to the public notification and comment period required under the federal Administrative Procedures Act. But he left the program temporarily intact for those who had already benefited from it, pending appeal.
Wednesday’s ruling by three judges from the New Orleans-based 5th Circuit supports the judge’s initial findings. But it sent the case back to him for a look at the new version of the rules issued by the Biden administration in late August. The new rules go into effect October 31.
“District courts are in the best position to review administrative records in the rule-making process,” said 5th Circuit Judge Priscilla Richman, who was nominated to court by President George W. Bush. Other members of the panel are judges Kurt Engelhardt and James Ho, both appointed by President Donald Trump.
The 453 pages of new regulations are largely technical in nature and represent minor substantive changes from the 2012 memo that created DACA, but are subject to public comment as part of a formal rule-making process intended to increase its chances of surviving legal action.
In a July argument in the 5th Circuit, the U.S. Department of Justice defended the program, allied with the state of New Jersey, immigrant advocacy organizations and a coalition of dozens of powerful companies, including Amazon, Apple, Google, and Microsoft. They argue that DACA recipients have grown to become productive drivers of the US economy, holding and creating jobs and spending money.
Texas, joins eight other Republican-leaning states in arguing they are financially disadvantaged, incurring hundreds of millions of dollars in health care, education and other costs, when immigrants are allowed to remain in the country illegally. They also argue that the White House is overstepping its jurisdiction by providing immigration benefits that Congress will decide.
DACA is widely expected to go to the Supreme Court for a third time. In 2016, the Supreme Court reached a 4-4 stalemate over the expanded DACA and version of the program for DACA beneficiary parents, while still enforcing lower court decisions for the benefits to be blocked. In 2020, the top court ruled 5-4 that the Trump administration improperly ended DACA by failing to follow federal procedures, leaving it in place.
DACA recipients have become a powerful political force even though they are not able to vote, but their efforts to achieve a path to citizenship through Congress have repeatedly failed. Any imminent threat of losing their work permit and exposing themselves to deportation could pressure Congress to protect them, even as a temporary measure.
The Biden administration has disappointed some pro-DACA supporters with its conservative legal strategy to keep age eligibility unchanged. DACA recipients must be in the United States by June 2007, a requirement that is becoming increasingly difficult to reach. The median age of DACA recipients was 28.2 years at the end of March, compared with 23.8 years in September 2017.
There were 611,270 people registered with DACA at the end of March, including 494,350, or 81%, from Mexico and a significant number from Guatemala, Honduras, Peru and South Korea.
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