On October 5, 2022, in a disappointing but not unexpected ruling, the Fifth Circuit affirmed the ruling by a Texas judge that vacated the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program and barred new applicants. The DACA program was instituted in 2012, and protects young immigrants, sometimes called “Dreamers,” from deportation.

In the 48-page opinion, a unanimous three-judge panel comprised of U.S. Circuit Judges James Ho, Kurt Engelhardt and Priscilla Richman, held the trial court’s decision that President Barack Obama’s 2012 memo creating the DACA policy violated the Administrative Procedure Act (APA), noting that the DACA memo “contradicts significant portions” of the Immigration and Nationality Act and that DACA’s APA deficiencies are “severe.”

The opinion, written by Richman, states: “DACA created a detailed, streamlined process for granting enormously significant, predefined benefits to over 800,000 people. This constitutes a substantive rule. Because DACA did not undergo notice and comment, it violates the procedural requirements of the APA.”

The panel also asked the lower court to review the Biden Administration’s recent final rule on DACA, which was issued by DHS in August and is slated to take effect on October 31, rather than determine themselves whether the appellate court’s findings on the 2012 DACA memo apply to the final rule. In the immediate future, the Fifth Circuit will keep in place the stay of the vacature, pending Supreme Court review, given the “profound significance” of the decision on the lives of DACA recipients and the uncertainty of a high court’s decision.

Ulmer’s Immigration Law Group is closely monitoring these developments.