Future of DACA in Doubt

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On July 6, 2022, a panel of federal judges seemed unmoved by the Justice Department's arguments supporting the legality of the Deferred Action for Childhood Arrivals (DACA) program. According to U.S. Citizenship and Immigration Services (USCIS), there were 611,470 active DACA recipients as of December 31, 2021.

Last year, U.S. District Court Judge Andrew Hanen decided that DACA was illegal. The current panel of judges is hearing appeals by the Biden administration to this decision. Hanen's ruling mandated that the Department of Homeland Security (DHS) stop approving new applicants to the program. DACA gives young undocumented immigrants authorization to work in the U.S. legally and also shields them from being deported. Although the order put a halt to new DACA applications, it did permit DHS to continue processing DACA renewals while the issue is still being litigated.

The panel hearing the case, Judges James Ho, Kurt Engelhardt, and Priscilla Richman, are a relatively conservative trio of jurists on an appeals court broadly thought to be the most conservative bench of its kind in the entire U.S. The panel is anticipated to rule on the case within the next few months. Whichever side ultimately loses will almost certainly seek further review by the full bench of the 5th Circuit and later by the Supreme Court.

President Obama announced the DACA program in 2012. Conservative states waited to make a serious legal attack on the program after Obama looked to expand it in 2014. Judge Hanen blocked the expansion. In 2016, the Supreme Court voted to allow the block to remain in effect. When President Trump took office, he declared that DACA was unlawful and attempted to end it. Lower courts blocked Trump’s efforts to cancel the program. In 2020, the Supreme Court invalidated Trump’s moves to wind down DACA, ruling that officials failed to consider all relevant factors in deciding to end it.

The Biden administration is in the process of developing a new regulation to address the status of DACA recipients and possibly others not covered under the current program. However, the status of this new regulation is presently uncertain.

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