On October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a widely anticipated ruling upholding a district court’s determination that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. The decision has no immediate impact on current DACA recipients or their employers, as the three-judge panel stayed its decision pending further review by the district court. In particular, the district court must review a new DACA regulation published by the Department of Homeland Security (DHS) that is set to go into effect on October 31, 2022. The Biden Administration had crafted this new regulation to address the procedural concerns raised by the district court in its earlier ruling against the DACA program.
On October 14, 2022, the district court judge held a status hearing and ruled that the current version of the federal policy can continue, at least temporarily, with the limitations that are presently in place. The judge confirmed that the injunction preventing the government from adjudicating first-time requests for DACA applies to the new regulation. Thus, the new regulation will not take effect on October 31, 2022, for initial applications. The judge ordered attorneys for the federal government to provide more information on the new rule.
While no immediate action is required by employers or their employees, current DACA recipients should take care to renew their Employment Authorization Document (EAD) cards and DACA grant before expiry.
The DACA program was announced in June 2012 by then-Secretary of Homeland Security Janet Napolitano in a memorandum outlining DHS’s exercise of prosecutorial discretion with respect to certain young people living in the United States without authorization. The memorandum required DHS agencies to establish procedures by which eligible individuals could apply for “deferred action” – essentially a non-prioritization of immigration enforcement. Under procedures created by Immigration and Customs Enforcement (ICE) and U.S. Citizenship & Immigration Services (USCIS), eligible applicants could receive deferred action as well as employment authorization in renewable two-year increments.
In July 2021 – after a separate U.S. Supreme Court decision striking down the Trump Administration’s attempt to end the DACA program – a U.S. district judge in the Southern District of Texas ruled that the DACA program itself was unlawful. Specifically, the judge found that Secretary Napolitano’s 2012 memo had failed to comply with the requirements of the Administrative Procedure Act (APA), including the notice-and-comment period required for informal rulemaking. This decision resulted in (1) USCIS continuing to accept initial applications for DACA but the agency was enjoined from actually processing them; and (2) the agency continuing to accept and process renewal applications from existing DACA recipients pending review of the decision by the Fifth Circuit.
In its October 5 ruling, the Fifth Circuit likewise results in (1) enjoining USCIS from accepting initial DACA applications, and (2) continuing to accept and process DACA renewals. The court noted that as the litigation was progressing, DHS had issued a new final rule through notice-and-comment related to grants of deferred action to childhood arrivals. Accordingly, the case was remanded to the district court to review the new regulation with respect to the procedural concerns it had originally raised about Secretary Napolitano’s 2012 memo – i.e., to determine whether the new regulation addresses those concerns.
USCIS’s Response to the Fifth Circuit Decision
In public statements since the Fifth Circuit’s ruling, USCIS has made clear that it will continue to accept and process renewal applications for the DACA program, even though it is enjoined from granting initial DACA requests. For example, on October 5, USCIS Director Ur Jaddou stated that the decision “does not change current USCIS operations.”
The agency also updated its Frequently Asked Questions page to affirm that the ruling “does not affect current grants of DACA and related Employment Authorization Documents.” USCIS specified that it would “continue to accept and process renewal DACA requests, accompanying requests for employment authorization, and applications for advance parole for current DACA recipients . . . .”
Key Points for Employers and Employees
In order to ensure compliance with all applicable U.S. immigration laws, employers and their employees should understand the following points after the Fifth Circuit ruling:
- Current DACA recipients with valid EAD cards remain work-authorized through the validity date stated on their EAD.
- Current DACA recipients may apply to renew both their DACA grant (Form I-821D) and their EAD card before expiry. USCIS will continue to adjudicate these requests and to issue new approvals in two-year increments.
- Employers should ensure compliance with I-9 regulations during verification and reverification of DACA recipients’ employment documents.
- USCIS remains enjoined from processing initial DACA requests as well as accompanying requests for employment authorization.
For the present moment, the legal status of DACA remains unchanged by the Fifth Circuit’s finding that the program – as constituted by Secretary Napolitano’s 2012 memo – was unlawfully created. While DHS’s new regulation is set to take effect on October 31, litigation remains ongoing – and pressure for congressional action continues.
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 The U.S. government had argued that Secretary Napolitano’s DACA memo was a “general statement of policy” and therefore exempt from the APA’s notice-and-comment requirement.
 See Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022).