The recent update to the Deferred Action for Childhood Arrivals (DACA) program instituted by the Biden Administration should not slow the review of a previous order, currently under appeal. That previous order stopped the enrollment of new applicants to the DACA program. That decision is being appealed and is currently under the Fifth Circuit court. However, the circuit court is considering sending the DACA review case back to the lower court. The Biden administration is urging the Fifth Circuit court to review the appeal and deliver a decision.

The U.S. Department of Homeland Security (DHS) is urging the Fifth Circuit court judge to complete the appeal process. The new guidelines, reinstating the program to a large part, are not subject to consideration in the appeal as it is not yet in effect and is not part of the legal claim.

The lower court claimed the Obama administration did not have the authority to create the DACA program when it was originally instituted in 2012. DACA provides relief from deportation and gives individuals work permits. An estimated 800,000 unauthorized immigrants brought to the U.S. as children are included in the program. DACA has long been the topic of legal debate.

There are many arguments when it comes to DACA policy, under either the Obama-created policy or the Biden-created policy. At the heart of the legal issues lies the legality of each entity creating the policy at all. Those challenging DACA claim that the DHS does not have the legal ability to create the immigration policy at all. They claim that the Immigration and Nationality Act (INA) does not allow for policies to be created outside of the established public comment process.

Those supporting DACA argue that the entities who brought the lawsuit, including the state of Texas, have no legal basis to bring the suit.

The new Biden-administration program is scheduled to go into effect on October 31, 2022. As such, the circuit court can ignore the Biden-created policy and solely focus on the Obama-created program. However, the state of Texas says both policies are not legal as they did not follow the processes outlined in the INA.

If you have questions about DACA or any other immigration-related issue, contact us at ILBSG. We work with our clients to ensure they get the right advice for their particular situations.

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