The future of the Deferred Action for Childhood Arrivals (DACA) program remains in limbo after judges from the U.S. Court of Appeals for the 5th Circuit heard arguments on the case Thursday.
The litigation was initiated in 2018 by Texas and other Republican-led states seeking to end DACA. The program offers temporary protection from deportation and provides work permits to undocumented immigrants brought to the U.S. as children who are often referred to as "Dreamers."
A major focus of the arguments before the appeals panel is whether Texas, the lead plaintiff, has the legal standing to bring the lawsuit and whether a Texas district judge had the authority to issue a nationwide ruling.
During the hearing, Judge Stephen Higginson questioned Joseph Mazzara of the Texas Attorney General's Office, pointing out that 22 states have said they benefit from the contributions of DACA recipients.
Higginson was skeptical of Mazzara’s claims that ending DACA would force recipients to voluntarily leave the country and save states money.
"If they lose this policy program, they're actually going to leave their jobs, leave the schools, and go back to countries they have never lived in?" Higginson asked.
Judge Jerry Smith expressed doubts about the Biden administration's argument, suggesting that a Supreme Court ruling — which stated that hypothetical injuries caused by immigration policies are not enough to establish legal standing — applied only to the case in question.
"We don't budge on our past cases unless there's been an unequivocal statement by the Supreme Court," Smith said to Brian Boynton, a lawyer for the U.S. Department of Justice. "I just don't see how you're getting very far with that argument."
Texas and other Republican-led states have argued that DACA has harmed their states financially because they are spending resources on education, health care and other services on undocumented immigrants who were allowed to remain in the U.S. illegally.
Supporters say, however, that Texas has not demonstrated how DACA holders cost the state, nor how these claims are directly linked to the policy, which challenges its standing in the case.
Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund, said at a news conference outside the court that the group’s lawyers had several positive takeaways from Thursday's hearing.
"Judges were listening very carefully," Perales told supporters, DACA recipients and reporters. "They were taking notes on their notepads. They gave us time to make the points that we wanted to make. … They even let the attorney [in the case] speak after their time had expired."
Perales, one of the attorneys arguing the case, has said Texas cannot show any injury as a result of DACA because recipients contribute to their communities and states by paying taxes and more.
A final decision could take a while, Perales said. But the case will likely end up at the U.S. Supreme Court.
"One possible scenario is that the 5th Circuit decides [U.S. District] Judge [Andrew] Hanen didn't evaluate the evidence properly and sends the case back to [him]," she said.
If that happens, Perales said, DACA recipients might benefit from the current case's legal status, which allows recipients to continue renewing their DACA benefits while awaiting the courts' final resolution. The Biden administration continues to accept new applications but does not process them.
How we got here
Former President Barack Obama, frustrated with congressional inaction on the Dream Act, created DACA by executive order in 2012. Some DACA recipients arrived legally, but their families later overstayed their visas; others arrived by crossing the U.S.-Mexico border without authorization. They are now in their mid-20s to late 30s, and they come from around the world.
In 2018, Texas and other Republican-led states sued the federal government, arguing not only that they were being harmed financially but also that only Congress has the authority to grant immigration benefits.
In 2022, the Biden administration revised the program in hopes of satisfying one of the arguments made in federal courts by Republican-led states — that the program was not created properly. Biden officials issued the new version of DACA in late August. It went through a period of public comments as part of a formal rule-making process to increase its odds of surviving this legal battle.
In a February 2023, Texas Attorney General Ken Paxton, a Republican, wrote in a statement on his website that "the Obama and Biden programs are practically indistinguishable in both the negative harms that they will have on this country and in the illegal means used to implement them. I am therefore calling for the new DACA rule to end in the same way that the Obama-era rule did: struck down as unlawful."
But DACA has support. In October 2022, a coalition of dozens of influential corporations, including Apple, Amazon, Google and Microsoft, sent a letter to Republicans and Democrats in Congress urging a bipartisan solution for the almost 600,000 immigrants who are enrolled in DACA.
According to the Migration Policy Institute, DACA has "improved recipients' employment outcomes, increased the labor force participation rates of those who are eligible, decreased their unemployment rates, and boosted earnings for those with the lowest incomes."
MPI's analysis shows that DACA holders contribute "nearly $42 billion to the U.S. gross domestic product each year and add $3.4 billion to the federal balance sheet."
Bruna Bouhid-Sollod, a former DACA recipient and current senior political director at United We Dream, highlighted the emotional impact of the uncertainty.
"The importance of making [the impact] really clear is really important. … DACA recipients and their families are dealing with an extreme amount of stress," she said.
With renewal periods lasting just two years, many recipients are in constant limbo, unsure if their work permits and deportation protections will remain intact.
There is a lot at stake, according to immigration lawyers and advocates.
"Unless you're living in it," Bouhid-Sollod said. " … you don't think about the impact it has on the people that are waiting for their lives to be decided by this case,"
