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DACA hangs by a thread with the latest ruling on the Obama-era program.
DACA hangs by a thread with the latest ruling on the Obama-era program. Photo: Getty Images.

Federal Appeals Court rules DACA unlawful, but the program remains

DACA’s future remains uncertain as the 5th U.S. Circuit of Appeals sides with a 2021 lower court decision.

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On Wednesday, Oct. 5, a three-judge panel in the U.S. Circuit Court of Appeals for the Fifth Circuit, one of the country’s more conservative appellate courts, ruled that the Deferred Action for Childhood Arrivals program (DACA) was illegal, but will allow current recipients to renew their status. 

The judges wrote in their ruling that while they agree with the lower court that the DACA program is illegal, they “also recognize that DACA has had profound significance to recipients and many others in the 10 years since its adoption.” 

However, new applicants will be barred. 

The court affirmed with a 2021 lower court decision in which Texas Judge Andrew S. Hanen of the United States District Court in Houston, said former President Barack Obama overstepped his authority when he created the program in the first place. 

In Judge Hanen’s ruling, he said that current recipients would not be affected and that the federal government should not, “take any immigration, deportation or criminal action” against them that it “would not otherwise take.” Hanen has not been the only Republican to challenge DACA.

During his time in the White House, former President Donald Trump tried to eradicate the program altogether back in 2020. The decision was blocked by the Supreme Court at the time. 

Other Republicans in all sectors of government have had their hand in trying to get rid of the program as well. 

President Joe Biden has tried to preserve DACA during his time in office, but the latest ruling puts him at the wrong end of the legal fight.

“I am disappointed in today’s Fifth Circuit decision holding that DACA is unlawful. The court’s stay provides a temporary reprieve for DACA recipients but one thing remains clear: the lives of Dreamers remain in limbo,” Biden said in response to the appeals court ruling.

He also went on to join the call of many advocates and members of Congress to pass legislation to solidify the status of hundreds of thousands.

“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. And 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,” said Biden.

In the fight to preserve the program, the judges sent the DACA case back to Houston to consider a new policy introduced by Homeland Security Secretary Alejandro Mayorkas back in August that would further protect recipients. 

It would have gone into effect at the end of August if not for the latest ruling. In the long run it means DACA might have another day in the Supreme Court. 

“This decision makes 100 percent clear that the options for preserving DACA in the courts are dwindling and essentially nonexistent at this point. We really need Congress to step up,” said Jess Hanson, a staff lawyer at the National Immigration Law Center.

With midterms coming up and a potential Republican flip of one or both chambers of Congress, DACA may very well be now holding on by a single thread.

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