The decision by a federal appeals court last week to uphold a 2021 judge’s ruling deeming the Deferred Action for Childhood Arrivals program unlawful has again thrown into limbo the future of undocumented immigrants brought to the United States as children.
But legal wrangling in the case involving the law commonly known as DACA is far from over.
The US Fifth Circuit Court of Appeals in New Orleans last week ordered a federal district court judge in Texas to once again review DACA’s legitimacy.
DACA was created by the Obama Administration on June 15, 2012, to protect from deportation immigrants who were brought to the United States as children.
The legal appeal addresses revisions put forth by President Joe Biden in August to further protect the decade-old policy. The new rule was to go into effect Oct. 31, according to the US Department of Homeland Security.
The United States is home to about 600,000 DACA recipients nationwide, according to a Migration Policy Institute estimate, and about 5,000 of them are in Massachusetts. While DACA is under legal challenge, current recipients, often called “Dreamers,” will remain in the program and be able to renew their status. However, new applications are not being accepted.
Experts said the court ruling forces “Dreamers” to live in fear, unsure of when or if they’ll receive permanent resident status.
“[The ruling] creates unbelievable fear, uncertainty, anxiety, and chaos,” said Sarah Sherman-Stokes, an immigration law professor at Boston University. “People don’t know whether their livelihoods created in the United States will be pulled out from under them.”
Here’s what else you need to know about DACA and the latest ruling.
Who qualifies for DACA?
To qualify as a DACA recipient, applicants must have been under the age of 31 by June 15, 2012, arrived in the United States before their 16th birthday, and continuously resided in the United States since June 15, 2007, among other requirements outlined by US Citizenship and Immigration Services. Recipients are eligible for work and study, but they are not considered legal citizens, according to USCIS.
What does DACA look like in Massachusetts?
Sarang Sekhavat, political director for the Massachusetts Immigrant and Refugee Advocacy Coalition, said the number of Dreamers enrolled in Massachusetts has been steadily declining, as many who applied for green cards have received them. But he said DACA recipients are increasingly worried about their status.
“People who have DACA are certainly nervous that it’s going to be taken away,” Sekhavat said.
How does the ruling compare to previous legal challenges?
Although the three-judge panel of the federal appeals court decided DACA is unlawful, the judges sent the case back to the district court for reconsideration based on the new rule from the Biden administration.
The new rule seeks to better lay out the procedures for the program, an attempt to protect it from a legal challenge. The appeals court stated that the court should consider the new rule, putting DACA in a newly defendable position.
The federal courts have said DACA is unlawful for two reasons.
First, it never underwent a federal “notice and comment” process, according to Sherman-Stokes. Second, the Fifth Circuit believes the Department of Homeland Security “does not have congressional authorization to make a program like DACA,” Sherman-Stokes said.
But, Rachel Rosenbloom, a Northeastern University professor of law, said DHS has since gone through the notice and comment process for DACA, undermining a judge’s initial ruling that it failed to follow the required procedure.
How does this affect Dreamers and prospective applicants?
Rosenbloom said the ruling does not change things for those currently enrolled in DACA, but it means no one else can apply.
“DACA is still in existence, but it is hanging on by a thread,” she said. “DACA was never meant to be a complete solution; it was always a quick fix at a time when Congress was very close to granting relief for undocumented immigrants who came here as children, but [it] had repeatedly failed to do so.”
Rosenbloom emphasized that the program has never provided a path to citizenship for those enrolled and “in its essence, it is temporary.”
She noted that the applicant pool was already limited by DACA’s eligibility requirements, so the applicant pool has only shrunk since the memo was issued in 2012.
“Everyone who has DACA has known for years that it was precarious and could end,” Rosenbloom said. “In some ways, this is no different, it’s just one more reminder that DACA is not something anyone can depend on long-term.”
What’s next for DACA?
Experts agree that, no matter the outcome of the next court ruling, the case will probably be appealed at least once more, and may ultimately be decided by the Supreme Court.
But Sherman-Stokes said the high court’s opinion won’t be necessary if Congress takes action first.
“Congress has failed to act,” she said. “This could be corrected if Congress would just pass legislation that provided a pathway to citizenship for these hundreds of thousands of young people.”
Sherman-Stokes said she hopes Congress will pass such legislation for the sake of the people who have forged lives in the United States.
“Their well-being, their ability to settle and create a family and start a career and go to college and become part of the fabric of our community is being threatened because they have to live their lives with such uncertainty,” she said.