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This is an appeal of a district court decision granting the request by Texas and eight other states to permanently enjoin (block) the Deferred Action for Childhood Arrivals (DACA) program. DACA was created in 2012 by the Obama Administration, and it permits certain immigrants brought to the United States as children to apply, on a case-by-case basis, for temporary work authorization and relief from deportation.  In July 2021, the district court ruled that the creation of DACA was procedurally improper and that its substance conflicts with immigration statutes.  Thereafter, all three sets of defendants – the federal government, a group of individual DACA recipients, and the State of New Jersey – appealed that decision to the Fifth Circuit.  

Following briefing, oral argument took place on July 6, 2022 in New Orleans. 

On August 24, 2022, the Biden Administration issued a regulation (or “rule”) codifying the DACA program—which was created in 2012 via a memorandum issued by then-Secretary of Homeland Security Janet Napolitano—into a regulation.  As a practical matter, the rule changes virtually nothing about DACA: it has the same name, forms, application process, eligibility criteria, and fees as it did before.  The rule also does not affect the injunction prohibiting DHS from considering new DACA applications.  The rule does, however, put the program on stronger legal footing. The Fifth Circuit ordered the parties to submit additional briefing on how the new rule affects the legal issues in this appeal; that briefing concluded on September 1, 2022.

On October 5, 2022, the Fifth Circuit issued a decision that affirmed the district court’s conclusion that the 2012 memorandum creating DACA was procedurally and substantively unlawful. The Court declined, however, to consider the legality of the DACA regulation issued in August.  Instead, the Fifth Circuit decided to remand (return) the case back to the district court so that Judge Hanen can consider the legality of the new DACA regulation in the first instance. The Fifth Circuit maintained the status quo regarding the DACA program generally: existing DACA recipients can continue renewing their DACA for the time being, but the federal government is prohibited from granting DACA to first time applicants, even if they meet the eligibility criteria.

Technical Summary

Texas claimed that DACA was required to (but did not) go through notice and comment rulemaking, in violation of the Administrative Procedure Act (APA); that DACA is contrary to the immigration system established by the Immigration and Nationality Act, as amended, and should therefore be vacated under the APA; and that it violates the Take Care Clause of Article II (which requires the President to “take Care that the Laws be faithfully executed”).  

The district court (Judge Hanen) never reached the Take Care claim, at either the preliminary injunction stage or at summary judgment, but granted summary judgment to Texas on the other two claims.


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