- The Washington Times - Wednesday, October 5, 2022

A federal appeals court ruled Wednesday that the DACA program to protect immigrant “Dreamers” was created illegally by the Obama administration a decade ago, upholding a lower court’s decision to erase the program.

But the three-judge panel said its ruling doesn’t apply to the new version the Biden administration announced this year.

The judges sent the entire matter back to the lower-court judge to evaluate.



And the 5th U.S. Circuit Court of Appeals kept in place a partial stay, meaning the current DACA program will remain running while the case works through the court system.

The appeals court did signal a tough road ahead for the Biden plans, saying it does not appear that Congress anticipated such a broad grant of executive authority in immigration law.

“There is no ‘clear congressional authorization’ for the power that DHS claims,” wrote Chief Judge Priscilla Richman, who was nominated to the court by President George W. Bush.

But for now, she said, that merely means that the 2012 program created by the Department of Homeland Security in the Obama years was established in violation of the Administrative Procedure Act.

Homeland Security Secretary Alejandro Mayorkas said he was “deeply disappointed” in the ruling and said the administration is working on “an appropriate legal response.”

All sides agree that Congress could grant the Dreamers protections, and President Trump and congressional Democrats reached for a deal in 2018. But the president’s price of building a border wall, and potentially making other changes, was too steep for Democrats.

Wednesday’s ruling will fuel the political fight, with immigrant-rights advocates arguing voters have a chance to send a message in November by backing candidates who support granting citizenship rights to Dreamers and other immigrants who are in the country illegally.

Republicans, meanwhile, have made the border chaos under President Biden a top issue.

In sending the case back to the lower court, the 5th Circuit is continuing a line of cases that dates back nearly a decade, to the creation of the original DACA program.

Advocates called the ruling a “punt” that leaves 1.2 million people in the lurch.

“To continuously shuttle DACA through different courts, keeping it in limbo, is to devalue and ignore the contributions this policy has made to our state and country,” said Murad Awawdeh, executive director of the New York Immigration Coalition.

DACA grants a stay of deportation to immigrants who came to the U.S. illegally as children before the middle of 2007, who had been here at least five years, who had worked toward an education and who had kept a relatively clean criminal record.

The program, officially known as Deferred Action for Childhood Arrivals, also grants work permits, which allow the recipients to settle more deeply into communities and to obtain some taxpayer benefits such as tax credits, Social Security and Medicare.

President Obama had repeatedly said he didn’t have power to create such a program, before reversing himself in the months ahead of Election Day in 2012.

The Trump administration sought to phase out the program, drawing an avalanche of lawsuits that ended at the Supreme Court.

The justices ruled that Mr. Trump cut too many corners in trying to end the program, even though some of the justices pointed out that he had used the same methods as the Obama administration did in creating it.

Republican-led states, led by Texas, sued to force a decision on the original DACA program, leading to Wednesday’s ruling.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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