The Biden administration and pro-immigrant advocates on Wednesday urged a panel of federal appellate judges to preserve an Obama-era policy that provides work authorization and deportation protection to hundreds of thousands of unauthorized immigrants who arrived in the U.S. as children.
Brian Boynton, a Justice Department lawyer representing the administration, implored the New Orleans-based 5th Circuit Court of Appeals to reject arguments by a coalition of Republican-controlled states led by Texas that has argued the Deferred Action for Childhood Arrivals (DACA) program is unlawful.
During oral arguments before the court, Boynton said Texas lacked standing to sue the federal government and argued that immigration officials have broad discretion to shield unauthorized immigrants who don’t pose a threat to public safety from deportation and allow them to work legally.
“The 2012 DACA memorandum challenged in this case is lawful in its entirety and should be upheld,” Boynton told the three-judge panel.
But Judd Stone, Texas’ solicitor general, said the state did have standing, citing costs related to health care for DACA beneficiaries. He said the court should uphold a July 2021 ruling from a federal district judge who closed DACA to new applicants after finding the Obama administration did not have the authority to enact the policy in 2012.
In his ruling last summer, U.S. District Judge Andrew Hanen also said DACA had been improperly enacted. But he left the program intact for current enrollees, allowing them to continue renewing their two-year work permits and deportation deferrals until the 5th Circuit or the Supreme Court ruled on the case.
Stone urged the 5th Circuit to reject the Biden administration’s appeal of Hanen’s order, citing the court’s decision in 2015 to block a DACA-like policy the Obama administration attempted to implement to prevent the deportation of certain unauthorized immigrants with children who were U.S. citizens or residents.
“Here we are seven years later. Congress has rejected the Dream Act in every Congress since it’s been proposed,” Stone said, referring to bills that would place DACA recipients on a pathway to U.S. citizenship.
Wednesday’s oral arguments were heard by 5th Circuit Chief Judge Priscilla Richman, an appointee of President George W. Bush; and judges James Ho and Kurt Engelhardt, who were appointed by President Donald Trump.
Most of the questions were raised by Ho, who expressed skepticism about the Biden administration’s argument that Texas does not have legal standing to challenge DACA. Ho also noted that DACA not only protects beneficiaries from deportation, but also gives them access to some benefits, including work permits and driver’s licenses.
“It was described by the Supreme Court as not just a forbearance policy, but an affirmative immigration rewrite, essentially,” Ho said, citing a June 2020 Supreme Court ruling that stopped the Trump administration from ending DACA.
The 5th Circuit’s decision, which is expected to be issued later this year, could dictate the fate of more than 600,000 immigrants currently enrolled in the DACA program. The conservative-leaning appellate court has already ruled against several immigration and border policies instituted by the Obama and Biden administrations.
While it could be appealed to the full 5th Circuit or directly to the Supreme Court, a ruling that sides with Texas and shuts down DACA would place 616,000 beneficiaries in legal limbo and inject a sense of urgency into the immigration debate in Congress, which has remained deadlocked on the issue amid intense divisions over U.S. border policy.
Jeremy Feigenbaum, who represented New Jersey, which intervened in the case, questioned Texas’ decision to wait several years to challenge DACA. Given its 10-year existence, he told the three-judge panel on Wednesday, DACA’s demise would have negative implications on the country, beyond immigrants enrolled in the program.
“Now that we are a full decade later, eliminating DACA would cause extraordinary disruption for recipients, employers, their citizen children and states,” said Feigenbaum, who serves as New Jersey’s solicitor general.
Stone, the lawyer representing Texas, said the state is not asking the court to order the government to deport or take “offensive immigration action against a particular individual.” But he said Texas is challenging the government’s ability to grant DACA recipients lawful presence in the U.S.
The Trump administration attempted to terminate DACA as part of its efforts to crack down on illegal and legal immigration, but that termination was blocked by federal court rulings, including the Supreme Court decision that found officials did not take the correct procedural steps to end the policy.
Following that ruling, the Trump administration scaled back the program, reducing the validity of work permits and deportation protections from two years to one year and barring first-time applications.
But a federal court in New York in December 2020 found that acting Homeland Security Secretary Chad Wolf lacked the authority to change DACA because he had been improperly appointed. That ruling reopened DACA to new applicants for several months, until Hanen’s July 2021 order closed the program once again.
As part of a directive by President Biden to “fortify” DACA, the Department of Homeland Security in the coming months is expected to finalize a rule that will codify the program into a federal regulation, and separate the policy’s deportation protections from the grant of work authorization.
The regulations are designed to address the legal concerns Republican-led states have raised, but it’s unclear if they will ultimately save DACA.
If the 5th Circuit concludes that some parts of DACA are unlawful, it should only strike down those components, Boynton, the Justice Department attorney, told the panel on Wednesday.
But Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which also argued in favor of DACA’s legality on Wednesday, said the government should not remove the work authorization provision from the program.
“You can’t allow people deferred action, inviting and permitting them to stay in the United States, without giving them the means to support themselves and their families,” Saenz told reporters. “Failing to do so will create just the harms that the right wing always predicts, which is that people end up needing to depend on others.”
