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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.

On September 13, 2023, after briefing and oral argument in the district court, Judge Hanen issued an opinion holding that the DACA regulation (also known as a “rule”) issued by the Biden Administration in August 2022 suffers from the same legal infirmities as the prior version of DACA, which was based on an agency memorandum. Judge Hanen did not change the status quo: the approximately 580,000 individuals with DACA can continue to renew for the time being, but the federal government is prohibited from granting any new applications. In early November 2023, the federal government and the other defendants appealed Hanen’s decision and injunction to the Fifth Circuit.

The parties are currently briefing the appeal. Appellants–the federal government, the State of New Jersey, and a group of DACA recipients–filed their opening briefs on appeal on January 25, 2024. Texas filed its brief on appeal on April 9,2024. Appellants’ reply briefs are due at the end of April 2024. Sometime thereafter, the Fifth Circuit could schedule the appeals for oral argument, but it is not required to do so before issuing an opinion.

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”).  ​​​​​


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