DACA Ruling from the 5th Circuit

On October 5, the Fifth Circuit Court of Appeals issued its long anticipated decision in the ongoing DACA litigation. While the Fifth Circuit affirmed Judge Andrew Hanen’s 2021 ruling that the 2012 DACA Memorandum is unlawful, the court ultimately remanded the case to Judge Hanen to determine the legality of the Biden administration’s new rule fortifying DACA, which will take effect on October 31. Because procedurally it cannot review the multi-year administrative record, the Fifth Circuit declined to address the effect of the Biden administration’s new rule, which underwent a lengthy and arduous notice and comment period and codified over 16,000 comments from the public. The October 31, 2022 final rule essentially formalizes and fortifies the current DACA program as it has existed since 2012. The overarching issue in the DACA litigation continues to be whether various administrations’ actions have complied with the Administrative Procedures Act, which was the goal of Biden’s 2022 final rule.

In the meantime, the Fifth Circuit’s ruling maintains the current status quo by allowing current DACA recipients to maintain their protections and continue renewals, while continuing to block new applicants. Current recipients should file to renew as soon as they are eligible, which may be done online at uscis.gov for faster and easier processing. Steps to do so are here.

“Thankfully DACA remains undisturbed for current recipients – for now. However, the only certainty from this decision is that litigation will continue and that DACA recipients will remain in perilous limbo without permanent protections or pathways to permanent residence, much less citizenship. Now, more than ever, we must call on Congress to deliver permanent, legislative protections for DACA recipients,” said Natalie Teague, Disciples Immigration Legal Counsel. “DACA was never intended to be a permanent solution because it does not provide legal status or a pathway to permanent residence or citizenship. Only Congress can provide those benefits, and it has failed to do so for over a decade. Now is the time.”

For more information on the Fifth Circuit ruling, see posts from the National Immigration Forum, United We Dream, the National Immigration Law Center, and the Home Is Here Coalition.

More background on DACA litigation is available onthe 2021 legal update and webinar recordings in English and Spanish as well as prior webinars and updates in English and Spanish on the U.S. Supreme Court 2020 decision.

To ask Congress to pass permanent protections for DACA, such as The Dream Act which was most recently iterated as wwwthe American Dream and Promise Act of 2021, please sign on at the National Immigration Law Center or the American Immigration Lawyers Association (AILA) Advocacy Center.

United We Dream hosted a Community Huddle on October 6; you can join this effort to learn more on how to advocate for DACA recipients and to call on Congress to provide permanent protections and pathways!

* * * * *

Updated 10/10/2022:

The Presidents' Alliance on Higher Education and Immigration has released multiple helpful resources and announcements on forthcoming events:

• DACA Update: What You Need to Know - dated 10/07/2022

• U.S. State Policies on DACA re Tuition and Financial Aid

• 5 Things Colleges & Universities Can Do for DACA Recipients

• Immigrants Rising "Working for Yourself" Guide for Undocumented Students

• October 19 Webinar, "Uplifting Campus Resources: Effective Practices to Support Undocumented Students in Higher Education" - register here