A federal appeals court orders another review of the Biden administration’s DACA program

NEW ORLEANS — A federal appeals court on Wednesday ordered a lower court to review the Biden administration’s changes to a program that prevents the deportation of hundreds of thousands of immigrants brought to the United States as children.

The U.S. Fifth Circuit Court of Appeals said a federal district judge in Texas should take another look at the program after changes passed in August. For now, the ruling leaves the future of Deferred Action for Childhood Arrivals up in the air.

“It looks like the status quo for DACA remains,” said Veronica Garcia, an attorney with the Immigrant Legal Resource Center.

DACA was enacted by former President Barack Obama’s administration and had a difficult path through federal court challenges.

Texas U.S. District Judge Andrew Hanen ruled DACA illegal last year. It found that the program was not subject to the public notice and comment period required by the federal Administrative Procedure Act. But he temporarily left the program intact for those who were already using it, pending an appeal.

A three-judge ruling from the 5th Circuit in New Orleans, handed down Wednesday, upheld the judge’s original conclusion. But he is sending the case back to him to review a new version of the rule issued by the Biden administration in late August. The new rule goes into effect on October 31.

“The district court is best placed to review administrative records in the rulemaking process,” said the opinion of 5th Circuit Chief Judge Priscilla Richman, who was nominated to the court by President George W. Bush. The other members of the panel were Judges Kurt Engelhardt and James Ho, both appointed by President Donald Trump.

The new rule’s 453 pages are largely technical and represent little substantive change from the 2012 memo that created DACA, but it has been subject to public comment as part of a formal rulemaking process designed to improve its chances of legal survival .

In July arguments before the 5th Circuit, the Justice Department defended the program in alliance with the state of New Jersey, immigrant rights groups and a coalition of dozens of powerful corporations, including Amazon, Apple, Google and Microsoft. They argued that DACA recipients have grown to become productive engines of the U.S. economy, keeping and creating jobs and spending money.

Texas, joined by eight other Republican states, has argued that it has been financially harmed, incurring hundreds of millions of dollars in health care, education and other costs by allowing immigrants to remain in the country illegally. They also argued that the White House had overstepped its authority by granting immigration relief that was up to Congress.

DACA is expected to go to the Supreme Court for a third time. In 2016, the Supreme Court deadlocked 4-4 over expanded DACA and a version of the program for parents of DACA recipients, upholding a lower court’s decision to block the benefits. In 2020, the Supreme Court ruled 5-4 that the Trump administration improperly ended DACA by failing to follow federal procedures, allowing it to remain in place.

DACA recipients have become a powerful political force even though they cannot vote, but their efforts to get a path to citizenship through Congress have repeatedly failed. Any imminent threat of losing their work permit and facing deportation could compel Congress to protect them, even as a temporary measure.

The Biden administration has disappointed some DACA supporters with its conservative legal strategy of keeping age eligibility unchanged. DACA recipients were required to be in the United States as of June 2007, a requirement that has become increasingly elusive. The median age of a DACA recipient was 28.2 at the end of March, up from 23.8 in September 2017.

At the end of March, there were 611,270 people registered for DACA, including 494,350, or 81%, from Mexico and large numbers from Guatemala, Honduras, Peru and South Korea.