The federal appeals court orders another review of the Biden administration’s revised DACA program

NEW ORLEANS– A federal appeals court on Wednesday ordered a judicial review of the Biden administration’s revisions to a program preventing the deportation of hundreds of thousands of immigrants brought to the United States as children.

The US Fifth Circuit Court of Appeals said a federal district judge in Texas should revisit the program after the revisions adopted in August. The ruling leaves the future of the postponed action for the arrival of children up in the air for now.

“It appears that the status quo remains for DACA,” said Veronica Garcia, an attorney for the Immigrant Legal Resource Center, an advocacy group.

DACA was taken over by the administration of former President Barack Obama and has had a complicated journey through challenges in federal courts.

Texas-based US District Judge Andrew Hanen ruled DACA illegal last year. He found that the program had not been subjected to the notice and comment periods prescribed under the Federal Administrative Procedures Act. But he left the program temporarily intact for those already benefiting, pending appeal.

The decision by three New Orleans-based 5th Circuit judges Wednesday confirms the judge’s original finding. But it is sending the case back to him for a look at a new version of the rule issued by the Biden administration in late August. The new rule will come into effect on October 31st.

“A district court is best placed to review administrative records in the rulemaking process,” said the opinion of 5th Circuit Chief Justice Priscilla Richman, who was nominated to the court by President George W. Bush. The other members of the panel were Justices Kurt Engelhardt and James Ho, both appointed by President Donald Trump.

The new rule’s 453 pages are mostly technical and represent few substantive changes from the 2012 memo that DACA produced, but it has been the subject of public comment as part of a formal rulemaking process designed to improve its chances of surviving legal scrutiny.

In a July dispute in the 5th federal court, the US Department of Justice defended the program, allied with the state of New Jersey, immigrant advocacy organizations and a coalition of dozens of powerful companies including Amazon, Apple, Google and Microsoft. They argued that DACA recipients have grown into productive drivers of the US economy, maintaining and creating jobs and spending.

Texas, along with eight other Republican-leaning states, argued that if immigrants are allowed to remain in the country illegally, they will be financially hurt, causing hundreds of millions of dollars in health care, education and other costs. They also argued that the White House had exceeded its powers by granting immigration benefits that Congress must decide.

It is widely expected that DACA will face the Supreme Court for the third time. In 2016, the Supreme Court blocked 4-4 an expanded DACA and a version of the program for parents of DACA recipients, and upheld a lower court decision baring benefits. In 2020, the Supreme Court ruled 5-4 that the Trump administration unlawfully terminated DACA by failing to follow federal procedures and allowing it to remain in place.

DACA recipients have become a powerful political force despite not being able to vote, but their efforts to secure a path to citizenship through Congress have repeatedly fallen short. Any looming threat of losing their work permits and facing deportation could pressure Congress to protect them, even as a stopgap measure.

The Biden administration disappointed some pro-DACA advocates with its conservative legal strategy of leaving age eligibility unchanged. DACA recipients had to have been in the United States as of June 2007, an increasingly unattainable requirement. The median age of a DACA recipient was 28.2 at the end of March, compared to 23.8 in September 2017.

At the end of March, DACA had enrollment of 611,270 people, including 494,350 or 81% from Mexico and large numbers from Guatemala, Honduras, Peru and South Korea.