FederalImmigration & BorderIssuesJudicialFifth Circuit Upholds Federal Judge’s Decision Blocking New Applications to Obama’s DACA Program

Austin, TX, October 6, 2022 — The Fifth Circuit U.S. Court of Appeals decided against the Biden administration and barred new applications to the Obama-era Deferred Action for Childhood Arrivals (DACA) program. However, the court allowed those who are already included in the program to continue receiving its protection.

The U.S. Department of Homeland Security (DHS) unsuccessfully sought to preempt an unfavorable ruling by the appeals court by issuing a final rule last month. The rule made few changes to the substance of the program and allowed participants to apply for work permits every two years.

In July 2021, federal Judge Andrew Hanen in Brownsville decided that DACA violated the Administrative Procedure Act and encroached on the constitutional duties given to Congress. The Fifth Circuit returned the case back to Hanen’s courtroom for further consideration of DHS’s new guidance.

A spokesperson for the U.S. Department of Justice reportedly indicated that it intends to “vigorously defend the lawfulness of DACA as this case proceeds.”

President Biden lashed out at supporters of former President Trump, who is considered a possible contender for the 2024 Republican presidential nomination.

“Yesterday’s Fifth Circuit decision that DACA is unlawful is the result of efforts by MAGA Republican officials to strip people of their protections,” Biden wrote in a social media post. “I’m committed to defending Dreamers. It’s time that Congress pass permanent protections, including a pathway to citizenship.”

Supporters of DACA often refer to those protected by the program as “Dreamers” after the proposed Development, Relief, and Education for Alien Minors “DREAM” Act, which would provide permanent residency to those protected under DACA. The DREAM Act has never passed Congress.

DHS indicated last month that 800,000 people have been covered under the order since it was implemented. There are about 600,000 currently participating in DACA.

Janet Napolitano, the secretary of homeland security at the time, issued an official memorandum on June 15, 2012 invoking “prosecutorial discretion” and shielding illegal immigrants from deportation if they arrived as children, lacked a serious criminal conviction, and met other requirements.

There were at least 2.2 million enforcement encounters with illegal immigrants along the southwest U.S. border in Fiscal Year 2022, more than DHS has recorded in any prior year.