5th Circuit Rules DACA Illegal

Program for undocumented immigrants remains unchanged

Roy Maurer By Roy Maurer October 6, 2022
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​The 5th U.S. Circuit Court of Appeals ruled Oct. 5 that the Deferred Action for Childhood Arrivals (DACA) program protecting about 600,000 immigrants from deportation is illegal but allowed the program to remain as is while a review and likely appeal go forward.

In the meantime, the Department of Homeland Security will continue to accept the filing of both initial and renewal DACA applications but process only the DACA renewal requests.

We've rounded up articles from SHRM Online and other outlets to provide more context on the news.

Sent Back to Texas

The appellate court decision affirmed a 2021 ruling from the U.S. District Court in Houston, which found that former President Barack Obama exceeded his authority when he created the DACA program by executive action in 2012.

The 5th Circuit court sent the case back to the district court in Houston to consider a new Biden administration policy issued in August to protect the program. It is expected that the case will ultimately go to the U.S. Supreme Court.

(The New York Times)

Biden Issues Final Rule to Preserve DACA

The Biden administration announced a final rule codifying the DACA program for undocumented immigrants brought to the U.S. as children, a move aimed at strengthening the program against legal challenges. The rule will apply only to DACA renewal requests, not to new applications, as the program remains closed to new entrants.

The regulation is scheduled to take effect Oct. 31 and would temporarily allow over 611,000 immigrants to live and work in the U.S. legally without fear of deportation.

(SHRM Online)

Procedural Fix

The issuance of the final rule addressed the criticism that DACA had not gone through the formal rulemaking process, but other critics have questioned the authority to initiate the program at all, finding that only Congress has that authority. Experts said the regulation will help the Biden administration more successfully take on procedural challenges to DACA, but it won't prevent more-substantive lawsuits.

(SHRM Online

Roller Coaster Ride

The DACA program has been in a precarious limbo ever since former President Donald Trump announced the decision to rescind it in 2017. It's been kept alive by the courts since then and had most recently been fully reinstated in December 2020.

(SHRM Online)

Some Employers Are Still Unsure About Hiring 'Dreamers'

With the ultimate fate of DACA up in the air, many employers are unsure about hiring those from this diverse talent pool, commonly referred to as "Dreamers."

(SHRM Online)

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