The 5th Circuit Court of Appeals on Wednesday dealt a blow to the Biden administration and the thousands of young people in the U.S. hoping to benefit from the Obama-era Deferred Access for Childhood Arrivals program, or DACA, siding with an earlier ruling that deems the policy unlawful.
A three-judge panel argued the Obama administration did not have the authority to create the program in 2012, which granted children of undocumented migrants nicknamed “Dreamers” protection from deportation and work authorization.
Wednesday’s ruling supports a conclusion made by U.S. District Judge Andrew Hanen in July 2021, which called DACA unlawful partly because the Obama administration established the law through the Department of Homeland Security, violating the Administrative Procedure Act.
That ruling came after a coalition of seven states led by Texas sued in 2018, calling the law unconstitutional because it bypassed Congress.
However Hanen’s conclusion — which is effectively what the 5th Circuit deferred to on Wednesday — does not completely shut down DACA. Instead, it prohibits first-time applicants while leaving the law in place for current recipients.
Hanen is also directed with reviewing a final version of DACA that the Biden administration made in August in an effort to codify the law.
In a statement, Biden said he was “disappointed” in the ruling.
“The court’s stay provides a temporary reprieve for DACA recipients but one thing remains clear: the lives of Dreamers remain in limbo,” the statement reads. “Today’s decision is the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade.”
Biden also called on Congress to pass permanent protections for Dreamers, including a pathway for citizenship.
For the roughly 600,000 Dreamers currently living in the U.S., the last decade has been marred by uncertainty.
They could apply if they arrived in the U.S. at 16 years old or younger, and before 2007, were enrolled in a school and had a clean record. Anyone serving in the U.S. military was eligible, too.
But there is no pathway to citizenship for Dreamers, who for years lived in a state of limbo. The 2007 cutoff also means young Dreamers are ineligible for the program — roughly 100,000 will graduate high school this year unable to legally work.
Obama himself called the law a “stopgap” measure when it went into effect in 2012.
In the years that followed, immigration advocates assumed lawmakers would step in with a more permanent solution — “We presumed it would be a policy that stayed in place until Congress did something better,” said Matthew Soerens, the U.S. director of church mobilization and advocacy for World Relief’s refugee resettlement agency.
“Evangelicals have been urging Congress to solve this issue by passing legislation to allow Dreamers to apply for permanent legal status and citizenship for years, but today’s court decision underscores the urgency of action,” he said on Thursday.
Other advocates say the ruling sends a signal. “It indicates that DACA’s days are numbered,” Laurence Benenson, vice president of policy and advocacy at the National Immigration Forum, in a statement. “The ruling further solidifies the reality that Congress must provide certainty in the form of a permanent legislative solution that would allow Dreamers to stay and work in the country long term.”