DACA’s Fate in Doubt as Case Starts Path Back to Supreme Court

A recent federal court ruling declaring DACA unlawful jump starts the immigration program’s eventual pathway back to the US Supreme Court, three years after the justices stymied a Trump administration attempt to end it and seven years after a split court declined to rule on its legality. The Biden administration is expected to appeal the latest case to the US Court of Appeals for the Fifth Circuit, which found the Deferred Action for Childhood Arrivals program unlawful last year, but without considering the regulations. How soon that court rules on the case will determine when it could land before the Supreme Court. That could be as soon as the 2023-24 term but as late as spring of 2025, said Jennie Murray, president and CEO of the National Immigration Forum. Wednesday’s decision from Judge Andrew Hanen of the US District Court for the Southen District of Texas found that the Biden administration’s Deferred Action for Childhood Arrivals regulations suffer from the same substantive flaws as the 2012 Obama memorandum that established the program. Hanen, who has a history of scrapping programs aimed at providing immigrants with deportation relief, previously ruled against DACA last year before the regulations were issued to codify the program. The ruling does maintain protections for current DACA recipients, but nonetheless underlines the uncertainty over their long-term legal status, advocates say. The decision wasn’t a surprise, Murray said, “but it still doesn’t feel good.” . Different Supreme Court Supporters of DACA, which grants deportation protections and work permits to nearly 600,000 undocumented immigrants brought to the US as children, are well aware that the Fifth Circuit has already found the program unlawful once before. The program also has been before the Supreme Court twice: in 2016, when a 4-4 deadlock prevented a decision, and a 5-4 ruling in 2020 against the Trump administration’s attempt to end the program. But the composition of the high court has changed substantially since then, Murray said. Andrea Rathbone Ramos, a digital communications specialist at the American Immigration Council who herself is a DACA recipient, said the court fight over the program has fueled uncertainty over her long-term status. The Supreme Court’s 2020 ruling found that the Trump administration violated the Administrative Procedure Act in its attempt to dismantle DACA, but didn’t weigh in on the substantive legality of the program. Now an even more conservative court will have a chance to decide that issue. “That’s where I’m a little bit worried,” Ramos said. “At the same time, we were surprised before.” Legislation Sought There’s little doubt that the Fifth Circuit will uphold Hanen’s decision and that the case will then go to the Supreme Court, said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. There’s no predicting how the justices will rule, he said, but existing DACA recipients may be safe from losing protections at the hands of the court. “Judge Hanen has had the opportunity to do that twice. He didn’t do it,” Chishti said. “The Supreme Court had the same opportunity before.” Texas’ challenge to the Biden regulations asked Hanen to remove DACA protections for both new and existing recipients. But the Department of Homeland Security will continue to administer the program for current participants for now, including renewals. Still, continued uncertainty is fueling renewed calls for a permanent legislative solution from immigrant advocates and business groups alike. “Dreamers grew up in America, were educated here and have built their entire lives in this country,” Business Roundtable CEO Joshua Bolten said in a statement. “The threat of removal from the only place they know as home has hung over Dreamers for far too long.” The Council on National Security and Immigration said that “with swift action, Washington can provide Dreamers with a pathway to permanent immigration status, which will strengthen our economy and bolster our national security.” “We’re nervous about it,” Murray said of the legal developments. “We’re all hands on deck urging Congress to act.” The case is Texas v. US, S.D. Tex., No. 18-cv-0006, ruling 9/13/23. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.