Federal appeals court rules a programme that has protected hundreds of thousands of young immigrants from deportation is unlawful but sends case back to a lower court to consider a new Biden administration regulation.

DACA was adopted by ex-president Barack Obama's administration and has had a complicated ride through federal court challenges.
DACA was adopted by ex-president Barack Obama's administration and has had a complicated ride through federal court challenges. (Reuters Archive)

A federal appeals court has ordered a lower court review of Biden administration revisions to a programme preventing the deportation of hundreds of thousands of immigrants brought into the United States as children.

The 5th US Circuit Court of Appeals said on Wednesday a federal district judge in Texas should take another look at the programme following the revisions adopted in August. The ruling declaring the programme unlawful, for now, leaves the future of the Deferred Action for Childhood Arrivals (DACA) up in the air.

"A district court is in the best position to review the administrative record in the rulemaking proceeding," said the opinion by Chief 5th Circuit Judge Priscilla Richman, nominated to the court by ex-president George W Bush. The other panel members were judges Kurt Engelhardt and James Ho, both appointees of ex-president Donald Trump.

In remanding the case, the appeals court said it did not have enough information to rule on the new regulation, which is set to take effect on October 31, but that the case should be resolved as quickly as possible.

The 46-page opinion signalled the judges were skeptical of DACA's legality.

"The legal questions that DACA presents are serious, both to the parties and to the public," they wrote. "In our view, the defendants have not shown that there is a likelihood that they will succeed on the merits."

"It appears that the status quo for DACA remains," said Veronica Garcia, an attorney for the Immigrant Legal Resource Center, an advocacy organisation.

The decision is a mixed one for US President Joe Biden, a Democrat, who said he wants a permanent pathway to citizenship for DACA recipients — often known as "Dreamers."

DACA was adopted by former president Barack Obama's administration and has had a complicated ride through federal court challenges.

Texas-based US District Judge Andrew Hanen last year declared DACA illegal. He found that the program had not been subjected to public notice and comment periods required under the federal Administrative Procedures Act. But he left the programme temporarily intact for those already benefiting from it, pending the appeal.

Wednesday's ruling by three judges of the New Orleans-based 5th Circuit upholds the judge's initial finding. But it sends the case back to him for a look at a new version of the rule issued by the Biden administration in late August. 

The new rule takes effect on October 31.

"I am deeply disappointed by today’s ruling and the ongoing uncertainty it creates for families and communities across the country," Homeland Security Secretary Alejandro Mayorkas said in a statement.

"We are currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response."

READ MORE: US federal judge rules DACA unlawful, blocks new applicants

Deadlocked legislation

The new rule's 453 pages are largely technical and represent little substantive change from the 2012 memo that created DACA, but it was subject to public comments as part of a formal rule-making process intended to improve its chances of surviving legal muster.

In July arguments at the 5th Circuit, the US Justice Department defended the programme, allied with the state of New Jersey, immigrant advocacy organisations and a coalition of dozens of powerful corporations, including Amazon, Apple, Google and Microsoft. They argued that DACA recipients have grown up to become productive drivers of the US economy, holding and creating jobs and spending money.

Texas, joined by eight other Republican-leaning states argued that they are harmed financially, incurring hundreds of millions of dollars in health care, education and other costs, when immigrants are allowed to remain in the country illegally. They also argued that the White House overstepped its authority by granting immigration benefits that are for Congress to decide.

DACA is widely expected to go to the Supreme Court for the third time. 

In 2016, the Supreme Court deadlocked 4-4 over an expanded DACA and a version of the programme for parents of DACA recipients, keeping in place a lower court decision for the benefits to be blocked. In 2020, the high court ruled 5-4 that the Trump administration improperly ended DACA by failing to follow federal procedures, allowing it to stay in place.

DACA recipients have become a powerful political force even though they can't vote, but their efforts to achieve a path to citizenship through Congress have repeatedly fallen short. 

Any imminent threat to lose work authorisation and to expose themselves to deportation could pressure Congress into protecting them, even as a stopgap measure.

The Biden administration disappointed some pro-DACA advocates with its conservative legal strategy of keeping age eligibility unchanged. DACA recipients had to have been in the United States in June 2007, an increasingly out-of-reach requirement. The average age of a DACA recipient was 28.2 years at the end of March, compared to 23.8 years in September 2017.

There were 611,270 people enrolled in DACA at the end of March, including 494,350, or 81 percent, from Mexico and large numbers from Guatemala, Honduras, Peru and South Korea.

Source: TRTWorld and agencies