AILA President Responds to Court of Appeals Remand of DACA Litigation

By: Nadine Chen

On July 16, 2021, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas ruled that the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program was illegal. This ruling was appealed, with the federal government arguing in part that the states’ legal arguments against the program will be moot after the new DHS DACA regulation takes effect on October 31, 2022. On October 5, the Fifth Circuit Court remanded the case for further proceedings regarding the legality of the changes made to DACA under Biden.

James McKinney, President of the American Immigration Lawyers Association (AILA), released the following response:

“Yesterday, a panel of the Fifth Circuit Court of Appeals sent the DACA program back to Judge Hanen. However, there is little hope Judge Hanen will rule for the program, despite the fact that it is grounded in prosecutorial discretion—something every law enforcement agency possesses. The silver lining here is that the stay is continued, which means that DACA recipients eligible for renewal should be safe in the short term. While USCIS can accept new DACA applications, the agency cannot adjudicate them at this time.”

He went on to add, “This remand heightens the urgency that Congress must act immediately and protect Dreamers permanently. Congress has failed for 22 years to protect DACA recipients and other Dreamers--something a majority of voters from both sides of the aisle support in poll after poll. Congress needs to stop dragging its feet and get this done. Protecting Dreamers permanently is right, true to America’s values, and ultimately benefits all of us.”

As the future of DACA remains uncertain, it is essential that all potential recipients file their applications correctly and in a timely manner. For assistance in filing DACA, or case-specific questions please contact the trusted Chugh, LLP Immigration team.