WASHINGTON—The Fifth Circuit Court of Appeals has denied the federal government’s bid to reinstate in full its recent duplication of the Obama-era Deferred Action for Childhood Arrivals program (DACA). The Immigration Reform Law Institute (IRLI) had filed a brief in the Fifth Circuit showing that the program is substantively unlawful.
The original DACA was struck down by the Fifth Circuit, in part because it never went through the mandatory notice-and-comment process. In response, the Biden Administration issued an exact copy of the original program, and sent it through notice and comment. But a Texas federal district court then struck down this replicant program as substantively unlawful.
On appeal, the Fifth Circuit agreed that the program was substantively unlawful, but limited the district court’s injunction by “severing” one part of DACA—the part in which the federal government declares it will not deport DACA recipients—from the rest of DACA, in the which the government gives these recipients benefits such as work authorization. In the court’s view, the former, “forbearance” part of DACA is constitutional, so it did not enjoin that part, though it enjoined the benefits part. In a further twist, the court limited the district court’s nationwide injunction to the state of Texas, on the dubious ground that only Texas had shown injury.
IRLI disagrees with both of these limitations. In IRLI’s view, the forbearance part of DACA is a suspension of the law by the executive, and thus unconstitutional as a failure to take care that the laws be faithfully executed. And injunctions against immigration actions such as DACA should have the same scope as the actions themselves—the whole nation.
“Striking down DACA’s work authorization and other benefits in the State of Texas is a significant victory, but it does not go far enough,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Congress has repeatedly refused to legalize DACA recipients, and no administration can take that step in its place, through a sweeping ‘forbearance’ policy that suspends the law. We look forward to further appeals that will make this clear, and do away with DACA entirely.”
The case is Texas v. United States, No. 23-40653 (Fifth Circuit).
