AILA President Responds to Fifth Circuit Court of Appeals Remand of DACA Litigation

American Immigration Lawyers Association (AILA) President Jeremy McKinney responded to the Fifth Circuit Court of Appeals remand of the State of Texas v. USA litigation, which sends the case back to Judge Andrew Hanen who has previously ruled against the continuation of the Deferred Action for Childhood Arrivals (DACA) program. The Fifth Circuit agreed with Judge Hanen that the 2012 program as originally envisioned and implemented by the Obama administration was illegal, but sent the case back to Judge Hanen to review the updated policy promulgated by the Biden administration that takes effect later this month.

"Yesterday, a panel of the Fifth Circuit Court of Appeals sent the DACA program back to Judge Hanen. However, there is little hope Judge Hanen will rule for the program, despite the fact that it is grounded in prosecutorial discretion—something every law enforcement agency possesses. The silver lining here is that the stay is continued, which means that DACA recipients eligible for renewal should be safe in the short term. While USCIS can accept new DACA applications, the agency cannot adjudicate them at this time.

“This remand heightens the urgency that Congress must act immediately and protect Dreamers permanently. Congress has failed for 22 years to protect DACA recipients and other Dreamers--something a majority of voters from both sides of the aisle support in poll after poll. Congress needs to stop dragging its feet and get this done. Protecting Dreamers permanently is right, true to America's values, and ultimately benefits all of us."