The U.S. Court of Appeals for the Fifth Circuit on Wednesday held that the 2012 memorandum that created Deferred Action for Childhood Arrivals (DACA) was unlawful. However, the court sent the case back to a lower court, asking a trial judge to consider the legality of DACA regulations the Biden administration issued in late August.

Key Points:

  • The Obama administration issued the memorandum that created DACA in June 2012, shielding hundreds of thousands of “Dreamers” (immigrants who were unlawfully present in the U.S. after being brought to the country as children) from deportation and allowing them to apply for work authorization.
  • In July 2021, a federal judge in Texas ruled that the Department of Homeland Security (DHS) did not follow proper procedures when establishing the program. The Justice Department appealed the ruling. The Fifth Circuit heard arguments in the case in July.
  • In August, the Biden administration published a regulation to “preserve and fortify” DACA, motivated in part to protect the program from legal challenges. The regulation is currently set to take effect Oct. 31 but is subject to litigation.
  • The Fifth Circuit concluded in its ruling Wednesday that the district court was correct in vacating the 2012 DACA memorandum. The appellate court also concluded, however, that the district court is in “the best position to review the administrative record” and determine whether this holding properly applies to the 2022 regulation. The appellate court urged the district court “to move this case forward as expeditiously as possible.”
  • The ruling does not immediately change the status quo for DACA recipients because the Fifth Circuit left in place a partial stay issued by the lower court. Currently, DHS continues to adjudicate only renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients.

BAL Analysis: Today’s ruling does not change the status quo for current DACA beneficiaries, but given the uncertainty around the litigation, individuals are urged to renew their DACA and related employment authorization as soon as possible. BAL will continue to monitor the ongoing litigation closely and provide updates on important developments related to DACA.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact

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