The Fifth U.S. Circuit Court of Appeals ruled in Texas vs. USA on Jan. 17 that the Deferred Action for Childhood Arrivals (DACA) Final Rule is “substantively unlawful,” but will maintain status quo with DACA’s policy of forbearance and limit its injunction to Texas only.

Key Points:

  • This is the latest chapter in the long-running litigation challenging the Final Rule by the Department of Homeland Security (DHS) on DACA published Aug. 30, 2022.
  • The Fifth Circuit largely agreed with the concluding Final Rule, like the DACA Memorandum it replaced, was both “substantively unlawful” (see also “Additional Information” below) and in violation of the Immigration and Nationality Act.
  • The Fifth Circuit affirmed its judgement with the following significant changes to the district court’s remedial order:
    • The Final Rule includes a severability clause stating that if any provision of the Rule is held “invalid and unenforceable in all circumstances,” then that “provision shall be severable from the remainder of this subpart and shall not affect the remainder thereof.” The Fifth Circuit found that because DHS intended the dual aspects of DACA to be severable and to function independently from one another, the district court erred by not severing the forbearance from removal provisions from the work-authorization provisions. The Fifth Circuit’s ruling therefore limited the District Court’s vacatur order to the work authorization provision, leaving the protection from removal provision intact.
    • The Fifth Circuit also limited the scope of the injunction to Texas because Texas was the only plaintiff that demonstrated an actual injury and that injury — costs related to providing health, education and social services to DACA recipients — was fully redressable by a geographically limited injunction.
  • The Fifth Circuit preserved the stay regarding DACA’s policy of forbearance (which protects DACA recipients enrolled prior to the district court’s July 2021 order) because “DACA has had profound significance to recipients and many others in the [now-twelve] years since its adoption … Given the uncertainty of final disposition and the inevitable disruption that would arise from a lack of continuity and stability.”

Additional Information: DACA specifically offers removal protections and work permit eligibility to immigrants who arrived in the country without authorization as children and were 30 or younger when it was launched in 2012. In 2021, a district court held that Texas has standing to challenge DACA and that DACA is procedurally and substantively unlawful. The court halted the program and enjoined the government from approving any new DACA applications but stayed the effective date of its vacatur to all DACA recipients who had received their initial DACA status before the date of the order. In 2022, the Fifth Circuit appellate court affirmed in part and remanded because DHS had cured DACA’s procedural defect by promulgating a Final Rule.

This alert has been provided by the BAL U.S. Practice Group.

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