Federal appeals court rules 2012 DACA memo unlawful and sends case back to consider Biden administration version

By Priscilla Alvarez, CNN

A federal appeals court largely upheld a district court ruling finding that the Obama-era Deferred Action for Childhood Arrivals program is unlawful but sent the case back to the lower court to decide the legality of a new rule fortifying the program.

DACA, created in 2012, was intended to provide temporary reprieve to undocumented immigrants who were brought to the United States as children, a group often described as “Dreamers.” Many of them are now adults.

There are more than 611,000 immigrants enrolled in the program, according to US Citizenship and Immigration Services. Wednesday’s ruling will not affect those currently in the program, but it will continue to block new applications.

Judge Andrew Hanen, of the Southern District of Texas, ruled in July 2021 that DACA was unlawful and blocked the government from approving new applications for the program. Hanen’s order, however, allowed the program to continue for current enrollees while the case is litigated.

The appeals court preserved the stay in its ruling Wednesday.

“We also recognize that DACA has had profound significance to recipients and many others in the ten years since its adoption. Given the ‘uncertainty of final disposition’ and the ‘inevitable disruption that would arise from a lack of continuity and stability,’ we preserve the stay as to existing recipients,” the ruling reads.

The Biden administration released a rule in August to “preserve and fortify” the DACA program, largely maintaining the criteria for the program. The federal appeals court acknowledged the new regulation in its ruling, saying the lower court should consider it.

“A district court is in the best position to review the administrative record in the rulemaking proceeding and determine whether our holdings as to the 2012 DACA Memorandum fully resolve issues concerning the Final Rule,” the ruling states.

Department of Justice spokesperson Dena Iverson said in a statement that the department “respectfully disagrees with the decision and will continue to vigorously defend the lawfulness of DACA as this case proceeds.”

In a statement, President Joe Biden said he was “disappointed” with the ruling, calling the decision “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 emphasized his administration’s commitment to defending “Dreamers,” but called upon Congress to take action.

“While we will use the tools we have to allow Dreamers to live and work in the only country they know as home, it is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship.”

Homeland Security Secretary Alejandro Mayorkas said following the ruling that he was “deeply disappointed” by the decision.

“I am deeply disappointed by today’s DACA ruling and the ongoing uncertainty it creates for families and communities across the country. We are currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response,” he said in a statement, urging Congress to pass legislation “to provide permanent protection to the hundreds of thousands of Dreamers who call the United States home.”

Immigrant advocates also maintained that the onus is on Congress to provide protections to DACA recipients.

“The good news is that those currently with DACA will continue to live and work under the protections of the program. The bad news is that DACA is hanging by a thread,” said Sergio Gonzales, executive director of the Immigration Hub, in a statement.

“With the direction of the courts clear, options for executive action limited, and a change in the composition of Congress possible, we want to be crystal clear: the only realistic way to protect the 610,000 young people with DACA is for Congress to act by the end of the year,” he added.

Democrats and Republicans have been sympathetic to the hundreds of thousands of undocumented immigrants who were brought to the US as children, many of whom were under the age of 10. But the give and take between Democrats and Republicans over “Dreamers” has made it difficult to achieve a bipartisan compromise.

This story has been updated with additional details Wednesday.

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CNN’s Evan Perez contributed to this report.