A federal judge in Texas has set a hearing for June 1 in a case challenging the legality of the Biden administration’s Deferred Action for Childhood Arrivals regulation.

Key Points:

  • Judge Andrew Hanen is hearing the case after the Fifth Circuit Court of Appeals ruled that the memorandum that created DACA in 2012 was unlawful but also asked the district court to consider the legality of the 2022 final rule.
  • The Biden administration constructed the regulation to “preserve and fortify” DACA, but the states challenging the program say it “suffers the same flaws” as the 2012 memorandum.
  • Currently, the Department of Homeland Security continues to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients; the agency remains prohibited from granting initial DACA requests and accompanying requests for employment authorization.

BAL Analysis: Judge Hanen ruled in 2021 that the Obama administration did not follow proper procedures when it created DACA and is now weighing the Biden administration’s attempt to protect the program through federal regulation. Given the uncertainty around the litigation, individuals who are eligible to renew their DACA and related employment authorization are urged to do so as soon as they are eligible. BAL will continue to monitor the ongoing litigation and will provide updates on important developments related to DACA. For more information, visit BAL’s DACA Resource Center here.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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