U.S. Court of Appeals for the Fifth Circuit Rules that DACA Program is “Unlawful”

On October 5, 2022, the U.S. Fifth Circuit Court of Appeals voted unanimously to uphold the ruling of a U.S. Federal District Court in the Southern District of Texas (Texas v. United States) enjoining the DACA (Deferred Action Against Childhood Arrivals) Program and vacated the 2012 Department of Homeland Security (DHS) memorandum establishing the program. The Fifth Circuit agreed with the lower court’s findings that the DACA program violated the Administrative Procedure Act and was substantively and procedurally unlawful. However, the Fifth Circuit returned the case to the lower court in light of the Bidem Administration’s recently promulgated DACA regulation, which is scheduled to take effect on October 31, 2022, and agreed to maintain the current stay that temporarily preserves the DACA program. As a result of the stay that remains in place, current DACA recipients will not lose their protection from removal or work authorization. DHS will continue to accept the filing of both initial and renewal DACA applications but will process only the DACA renewal requests. New DACA applications will not be adjudicated unless the DACA program is upheld in subsequent litigation.