A federal appeals court will hear arguments this week on the fate of hundreds of thousands of immigrants illegally in the country who arrived in the United States as minors and have been shielded from deportation and allowed to work legally.
Deferred Action for Childhood Arrivals, or DACA, has enabled beneficiaries to build lives and careers in the United States. But the Obama-era initiative was intended to be a short-term fix until Congress overhauled the nation’s outdated immigration system.
The country is still waiting, and the system has grown only more dysfunctional, even as international migration becomes more complex and the issue becomes more politicized. With Congress unwilling to act, battles over immigration policy have increasingly ended up in the federal courts.
The current lawsuit over DACA, filed in 2018 by Texas and six other Republican-controlled states, argues that the creation of the program represented an overreach of presidential authority and imposed undue costs on the states.
The Justice Department is defending DACA, joined by a host of other parties, including the state of New Jersey and the Mexican American Legal Defense and Education Fund. Tech giants Apple, Google and Microsoft are backing the effort to preserve DACA, too, noting that the program’s recipients benefit the economy and arguing that presidents have the power to defer the enforcement of immigration laws.
Arguments in the case are scheduled to be heard Thursday in New Orleans by a panel of three judges at the 5th U.S. Circuit Court of Appeals. The court, which covers Louisiana, Texas and Mississippi, is known as one of the most aggressively conservative in the country. It upheld a partial ban on the abortion drug mifepristone, a ruling that the Supreme Court reversed.
The judges hearing the DACA challenge will consider three questions — whether the plaintiff states have shown that the program actually costs the states money; whether the Biden administration was acting within its authority in 2022 when it sought to “preserve and fortify” DACA with a formal rule; and whether the trial court, which blocked new applicants to the program nationwide, should have limited its ruling to the seven states that sued.
The states will argue that they have borne financial and other costs of a program that they consider unlawful.
The states said in a brief filed this year that “because presidents cannot unilaterally override duly enacted statutes, DACA remains illegal.”
Those defending the program will argue that the president had the authority to create the program and that the executive branch can exercise discretion in immigration matters.
Under the program, the government granted a reprieve from deportation and work permits to immigrants who were younger than 31, had lived in the country since they were children and met other requirements. Beneficiaries must renew their status every two years.
Since DACA took effect 12 years ago, some 800,000 people have registered and a vast majority have renewed. After new applications were halted by the judge’s ruling in 2021, the number of enrollees dropped sharply. It currently stands at about 500,000. Experts attribute the decline in renewals to the program’s uncertain future.
President Barack Obama started the program in 2012 after legislation known as the Dream Act, which would have given legal status to young immigrants, stalled in Congress.
He described it as a stopgap measure to protect some of the nation’s most vulnerable immigrants — those who had been brought to the United States as children through no choice of their own and had grown up as Americans.
The initiative proved hugely popular, and a long-term solution never materialized in a divided Congress, even though the young people had support from lawmakers and Americans across the political spectrum.
Then, in 2017, the Trump administration moved to kill DACA, under the premise that it went outside the executive branch’s constitutional powers. The program has been suspended, reinstated and partly rolled back by court rulings ever since.
In June 2020, the Supreme Court ruled against the Trump administration’s decision to terminate the program, deeming the move “arbitrary and capricious.” But the court did not rule on the core issue of whether the program itself was lawful.
A federal judge in Texas, Andrew S. Hanen, ruled in 2021 that DACA was unlawful, saying that Obama, in creating DACA, had exceeded his authority and run afoul of procedures for new regulations. The judge allowed current recipients to keep renewing every two years but barred the government from processing new applications.
The Biden administration put in place a formal rule for the program, hoping to address some of Hanen’s concerns. But, in September 2023, he held that DACA was still unlawful, prompting the appeal that the three-judge panel will consider this week in New Orleans.
None of the judges hearing the appeal this week are among Donald Trump’s six nominees to the 5th Circuit. But one of them, Judge Jerry E. Smith, wrote the majority opinion in a 5th Circuit appeal that blocked a similar Obama-era program for the parents of immigrants illegally in the country. The 5th Circuit has already pared back DACA in the past, upholding a lower-court ruling in a different case that barred the Department of Homeland Security from accepting new DACA applications.
The legal fight over DACA comes as the politics around immigration are far more polarized than when the program began. Trump has made threats of mass deportations a centerpiece of his presidential campaign. Even as Democrats denounce Trump’s incendiary anti-immigrant falsehoods, the party has tacked to the right on policy, with President Joe Biden tightening the rules on asylum and allowing a different two-year program for some immigrants to lapse.
In the case before the 5th Circuit, it could take weeks or months before the court issues a decision. Even if the appellate court rules the program is unlawful, it is unlikely to end immediately. Any ruling is expected to be appealed to the Supreme Court.
Beneficiaries of DACA were typically teenagers when they first received the status.
“The reality is that those folks are now adults who have careers,” said Bruna Bouhid-Sollod, senior political director at United We Dream, an immigrant rights group founded by young immigrants. “They have families. They have responsibilities.”
Among them are lawyers, doctors and teachers. Nearly half of them are married and have a child born in the United States.
“An end to DACA is not just about the DACA recipients,” Bouhid-Sollod said. “It would have a ripple effect that would be catastrophic.”
Since 2022, about 100,000 students have graduated high school annually without being enrolled in DACA. They are not shielded from deportation and while they can attend college and earn a degree, they cannot work legally in the United States.
The number of students illegally in the country who enrolled at University of California and California State University campuses declined 50% between the 2016-17 and 2022-23 academic years, according to a new study by scholars at the University of California Civil Rights Project at UCLA and the UC Davis School of Law.
The authors attributed the decline to the uncertainty over DACA’s future.
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