DACA case faces uncertainty again as US appellate court arguments loom

washington — The future of the Deferred Action for Childhood Arrivals (DACA) program remains in limbo with another court hearing set for October 10.

Judges from the 5th U.S. Circuit Court of Appeals will hear arguments on the case, initiated in 2018 by Texas and other Republican-led states seeking to end DACA. The program offers temporary protection from deportation and work permits to undocumented immigrants brought to the U.S. as children who are often referred to as “Dreamers.”

The case centers on whether DACA exceeds presidential authority, immigration advocates from the coalition “Home is Here” said during a recent conversation with reporters.

“Our response to that is that presidential authority in the area of immigration, and particularly the discretion exercised by the executive branch, is very broad and certainly encompasses the type of program that DACA is, which is now a regulation,” Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund, said during the call.

A central issue in the case is whether Texas and other states have the standing to sue.

Texas and other Republican-led states have argued that DACA has harmed them financially because they are spending resources on education, health care and other services on undocumented immigrants who were allowed to remain in the country illegally.

But Perales, who will be one of the attorneys arguing the case in October, said that “Texas cannot show any injury as a result of DACA” because recipients contribute to their communities and states by paying taxes and more.

A final decision could take a while, said Perales, who noted the 5th Circuit could take “as long as 18 months” to rule.

And the case could end in several ways: The 5th Circuit might dismiss the case, send it back to the lower court or rule against DACA, which could then be appealed to the U.S. Supreme Court.

“One possible scenario is that the 5th Circuit decides [U.S. District] Judge [Andrew] Hanen didn’t evaluate the evidence properly and sends the case back to [him],” she said.

If that happens, Perales said, DACA recipients might benefit from the current case’s legal state, which allows recipients to continue renewing their DACA benefits while awaiting the courts’ final resolution. The Biden administration continues to accept new applications but does not process them.

How we got here

Former President Barack Obama, frustrated with congressional inaction on the Dream Act, created DACA by executive order in 2012. Some DACA recipients arrived legally, but their families later overstayed their visas; others arrived by crossing the U.S.-Mexico border without authorization. They are now in their mid-20s to late 30s, and they come from around the world.

In 2018, Texas and other Republican-led states sued the federal government, arguing not only that they were being harmed financially but also that only Congress has the authority to grant immigration benefits.

In 2022, the Biden administration revised the program in hopes of satisfying one of the arguments made in federal courts by Republican-led states — that the program was not created properly. Biden officials issued the new version of DACA in late August. It went through a period of public comments as part of a formal rule-making process to increase its odds of surviving this legal battle.

In a February 2023 statement, Texas Attorney General Ken Paxton, a Republican, wrote in a statement on his website that “the Obama and Biden programs are practically indistinguishable in both the negative harms that they will have on this country and in the illegal means used to implement them. I am therefore calling for the new DACA rule to end in the same way that the Obama-era rule did: struck down as unlawful.”

But DACA has support. In October 2022, a coalition of dozens of influential corporations, including Apple, Amazon, Google and Microsoft, sent a letter to Republicans and Democrats in Congress urging a bipartisan solution for the almost 600,000 immigrants who are enrolled in DACA.

According to the Migration Policy Institute, DACA has “improved recipients’ employment outcomes, increased the labor force participation rates of those who are eligible, decreased their unemployment rates, and boosted earnings for those with the lowest incomes.”

MPI’s analysis shows that DACA holders contribute “nearly $42 billion to the U.S. gross domestic product each year and add $3.4 billion to the federal balance sheet.”

Bruna Bouhid-Sollod, a former DACA recipient and current senior political director at United We Dream, highlighted the emotional impact of the uncertainty.

“The importance of making [the impact] really clear is really important. … DACA recipients and their families are dealing with an extreme amount of stress,” she said.

With renewal periods lasting just two years, many recipients are in constant limbo, unsure if their work permits and deportation protections will remain intact.

There is a lot at stake, according to immigration lawyers and advocates.

“Unless you’re living in it … you don’t think about the impact it has on the people that are waiting for their lives to be decided by this case,” Bouhid-Sollod said.
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