Today the U.S. Court of Appeals for the Fifth Circuit issued its highly anticipated decision finding that the Deferred Action for Childhood Arrivals program, “DACA” was unlawful affirming the lower Texas District Court’s decision. We have previously discussed the DACA program here.
Does this mean that DACA is now over?
Not necessarily. The Fifth Circuit decision also ordered that the case be sent back to the lower district court to decide the legality of the new final rule under the Biden Administration attempting to fortify the DACA program. This final rule was in response to the lower district court’s previous order ruling that the program was unlawful. We discussed the final rule here.
As a result, the Fifth Circuit’s ruling will not affect DACA beneficiaries currently under the program, but the lower court’s block remains in place preventing new applications for the program to be adjudicated. The lower court order, however, still allows the program to continue to accept and approve renewal applications.
Is this decision then the final say in DACA?
No, as mentioned, the Fifth Circuit has now tasked the lower district order to review the DACA fortifying final rule to determine if the program is still unlawful in light of this new final rule. The district court may still find that the DACA program is still unlawful and this decision, may then be appealed back to the Fifth Circuit, so the issue is still a long way from being over especially since regardless of who wins with the Fifth Circuit, the Fifth Circuit case is likely to be appealed to the Supreme Court.
So that means that current DACA beneficiaries will be able to keep and renew their status indefinitely?
Not really, or at least they will be able to renew unless and until the district court terminates its previous order allowing for renewals which is not likely to happen any time soon. However, even though there is no quick end to the litigation, there will likely be an end at some point whether it’s a final determination that DACA is unlawful, terminating all applications including renewal applications, a decision finding that DACA is lawful, or a decision or settlement agreement with some sort of compromise allowing for some version of DACA to continue.
The point is that for now renewals continue and that we all have to stay tuned. Next stop is to see what the federal district court decides.
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