What’s Going on with the DACA Litigation?

With so much action occurring within the executive branch recently, it may have been easy to miss the U.S. Court of Appeals for the Fifth Circuit’s ruling last month on the Biden administration’s Deferred Action for Childhood Arrivals (DACA) regulation. This regulation was issued after the Fifth Circuit ruled that DACA, as it was originally issued by the Obama administration via policy memorandum, was both substantively and procedurally invalid under federal law.

In this most recent decision, the court of appeals affirmed the district court’s decision that the regulation was substantively invalid because it conflicts with federal immigration law but refrained from enjoining the regulation’s provisions that protect DACA beneficiaries from immigration enforcement. The court also narrowed its injunction to apply to only Texas. This injunction replaces the previous court order which enjoined the DACA program nationwide.

Background

DACA provides immigration benefits, including lawful presence and employment authorization, as well as forbearance from deportation to certain aliens who are in the United States illegally. In addition to other eligibility criteria, these aliens must have been under the age of 31 on or before June 15, 2012, and have entered United States prior to 2007, thus making the eligible population today between the ages of 27 and 43 years old.

Since 2012, DHS reports that more than 825,000 aliens have participated in the program. Recent U.S. Citizenship and Immigration Services (USCIS) reports put the current active DACA population at 537,730, but reports from the Migration Policy Institute estimate that there are 1.7 million DACA-eligible aliens in the United States, including the currently active population. Today, no DACA recipient or DACA-eligible alien is a minor.

How Did the Case Get Here?

In 2022, the court of appeals affirmed the district court’s 2021 ruling that declared the Obama administration’s DACA policy unlawful. The court of appeals, however, sent the case back down to the district court to reconsider the issue because it determined that the Department of Homeland Security (DHS) had cured the program’s procedural defects by finalizing the regulation at issue using the typical “notice and comment” process. On remand, the district court concluded that the regulation suffered the same substantive deficiencies as the original DACA policy and issued a nationwide injunction prohibiting DHS from approving any additional DACA applications. The court order, however, permitted existing DACA holders to maintain their DACA status.

What Issues Were Considered by the Court of Appeals?

Because the Biden administration made no substantive changes to the terms of the DACA program with its DACA regulation, the primary issue the court of appeals considered was not whether the regulation violated federal immigration law. On this question, the court was able to rely on its 2022 ruling to conclude that it did.

The court, rather, focused its analysis on whether the state plaintiffs still had standing after the U.S. Supreme Court’s decision in United States v. Texas, 599 U.S. 670 (2023) (holding that Texas and Louisiana lacked standing to challenge former Secretary Mayorkas’s 2021 “Guidelines for the Enforcement of Civil Immigration Law” memorandum, which limited officer’s discretion to initiate immigration enforcement actions).¹ This decision restricted standing from states challenging federal policies that restrict enforcement or arrests.

In United States v. Texas, the Supreme Court ruled it would be “extraordinarily unusual” for a “federal court to order the Executive Branch to alter its arrest policies so as to make more arrests”. The Court explained that because “[f]ederal courts have not traditionally entertained that kind of lawsuit”, the “States lack Article III standing because this Court’s precedents and the ‘historical experience’ preclude the States’ ‘attempt to litigate this dispute at this time and in this form.’” The Biden administration argued that the decision in this case precluded the Fifth Circuit from finding that Texas had standing to challenge DACA, which it categorized as merely designed to “defer the removal” of certain aliens with no lawful immigration status.

The Court of Appeals for the Fifth Circuit, however, rejected the Biden administration’s argument that Texas no longer had standing following the Supreme Court’s decision in United States v. Texas. The appeals court reminded DHS that the Supreme Court specifically distinguished cases that “challenge the Executive Branch’s arrest and prosecutorial priorities and the executive branch’s provision of legal benefits or legal status”, like DACA, from its ruling.

Again, DACA, unlike Mayorkas’s “Guidelines” memorandum, does not merely prohibit enforcement actions or limit arrests. The program also provides beneficiaries affirmative immigration benefits, such as access to work authorization and “lawful presence”, as well as access to other forms of taxpayer-funded public benefits. Moreover, deferred action decisions, like other forms of prosecutorial discretion, are typically made by U.S. Immigration and Customs Enforcement (ICE) prosecutors, not adjudicated by U.S. Citizenship and Immigration Services (USCIS), the agency charged with implementing the United States’ legal immigration system.

What Did the Court of Appeals Order?

The court of appeals vacated the DACA regulation but will allow DHS to maintain DACA’s forbearance policy. The court of appeals agreed with the Biden administration’s argument that the lower court erred when it vacated the entire DACA regulation instead of severing the regulation’s forbearance provisions from its immigration benefits (work authorization eligibility) provisions. This is because the regulation included what is known as a “severability clause” that provides that if any provision of the regulation is held “invalid and unenforceable in all circumstances”, then that “provision shall be severable from the remainder of this subpart and shall not affect the remainder thereof”.

Moreover, rather than issue a nationwide injunction, the court of appeals decided to limit the geographic scope of the ruling to Texas, the only state that demonstrated standing in the litigation. The court explained, “Though we have previously upheld nationwide injunctions because of the interest of uniformity in immigration laws, the balance of the equities outweighs that interest here. … An injunction limited to Texas alone is better tailored to Texas’s asserted injury.”

Finally, the court decided to continue to allow current DACA recipients, regardless of location, to maintain their status. On this issue, the court again referred to the immense reliance interests that DACA recipients and others have in the maintenance of their status, and the “the inevitable disruption that would arise from a lack of continuity and stability”. Quoting the district court, the court of appeals emphasized that, “DACA has had profound significance to recipients and many others in the [now-twelve] years since its adoption.”

Does This Ruling Matter Now that the Trump Administration Is in Power?

This ruling is important because many immigration experts expect this case to be appealed further and potentially considered by the Supreme Court. While it is unlikely that a Trump Department of Justice will continue to defend the program, a final disposition on this case could either green light or limit the scope administrative amnesties going forward. USCIS is not adjudicating initial DACA applications at this time.

Moreover, because the regulation is still partially in effect under this court order, the Trump administration will still need to go through “notice and comment” rulemaking procedures to rescind the DACA program nationwide and repeal the regulation from the Code of Federal Regulations. The Trump administration, however, will need to heed lessons learned from the DHS v. Regents of California, 591 U.S. 1 (2020), litigation, in which the Supreme Court struck down the first Trump administration’s attempt to terminate DACA. In that case, the Supreme Court concluded that DHS had not thoroughly considered reliance interests associated with maintenance of DACA or potential alternatives that could have addressed the program’s legal deficiencies.

End Note

¹ In short, standing is party’s capacity to bring a lawsuit in court. In federal court, plaintiffs must show that they have suffered an injury in fact; that there is a causal connection between that injury and the conduct brought before the court; and that such injury is redressable by the court (meaning that a favorable decision by the court will rectify that injury). In this case, Texas established standing by demonstrating that, “DACA recipients impose over $750 million in annual costs on the state, those costs are traceable to and exacerbated by the Final Rule, and a favorable judgment against DACA would at least partially alleviate Texas’s harm.”