A court argument in the Fifth Circuit Court of Appeals in New Orleans on Thursday could lead to the elimination of the Deferred Action for Childhood Arrivals program, or DACA, which has long protected undocumented immigrants who arrived as children and grew up in the United States.
“The Dreamers,” as the group has been known, have been protected over the past 12 years, since the program was created by former President Barack Obama by executive action, as a temporary fix, until Congress was able to pass legislation.
“It has since proved hugely popular, enabling hundreds of thousands of beneficiaries to become employed at tech companies, universities and hospitals. Many have bought homes and paid taxes. At its peak, some 800,000 people were enrolled in DACA, a number that has more recently shrunk to about 500,000,” The New York Times reports.
Of course, the Dreamers case also hinges on politics: “As with so many cases, however, part of the future of the DACA program and this litigation will be determined by the outcome of next month’s presidential election," wrote the Law Dork in its Substack blog. This also is another case where the Fifth Circuit could still take dramatic action while nonetheless pulling back one or two of the most extreme aspects of the district court’s order — something that has happened in multiple cases in the past two years.”
And as the Hill noted in its story, the case is likely to be headed to the U.S. Supreme Court.
Former President Donald J. Trump has moved to kill the DACA program in 2017, one of a number of measures his administration took to try to reduce the number of undocumented immigrants in the country. The program has been suspended, reinstated and partly rolled back by court rulings ever since. In 2018, conservatives in Texas and other states filed the challenge now being heard, claiming indirect injury because of taxpayer-funded services like Medicaid and public education.
Last year, Judge Andrew S. Hanen of the Southern District of Texas ruled that the Biden administration’s attempt to formalize DACA to allow it to remain in place was insufficient, and that Obama had overstepped his constitutional authority in creating it. Hanen agreed with the states challenging the program that it had been “illegally enacted.” His order, which remains on hold pending the current appeal, could put an end to DACA not only in the states that sued, but across the country – though the three-judge panel debated the nationwide scope within its argument on Thursday, as recounted in The New York Times:
“How could a single judge tell all 22 other states who are so grateful for these people that actually they’ve all got to leave the United States?” Judge Stephen A. Higginson asked in the Fifth Circuit on Thursday . “How does a single judge have that authority?”
Judge Higginson, who was nominated by Mr. Obama, also questioned Texas’s key assertion that immigrants with DACA protection who are living in the state have been a financial strain, and that ending the program would eliminate those costs. Proponents of the program note that many of the so-called Dreamers came to the United States as young children and have never known a life anywhere else.
“The logic is people that are lifelong residents of Texas, if they lose the program, they’re going to go back to countries they never lived in? Is that the logic?” Judge Higginson asked the lawyers.
Joseph Mazzara, who was argued the case on behalf of the Texas attorney general, responded that DACA recipients would most likely leave the country voluntarily if the program were ended. As evidence, he cited an annual survey of more than 3,000 DACA recipients compiled by Tom K. Wong, who directs the U.S. Immigration Policy Center at the University of California, San Diego.
Yet Mr. Wong, in a telephone interview with The New York Times, said that Mr. Mazzara’s claim was based on older data, and that as the years have gone by, DACA recipients were increasingly likely to say they wanted to stay in the United States. “Every DACA recipient I’ve spoken to says that they’re going to do everything they can to stay here and continue to build their lives,” he said. “I think what we’ll see in this year’s survey is that the overwhelming majority are going to stay, regardless of whether DACA continues.”
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