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Litigation News

Spring 2023, Vol. 48, No. 3

Uncertainty Looms over Legality of DACA Immigration Policy

Onika K. Williams


  • A three-judge federal court of appeals panel unanimously held that DACA is unlawful because it violates the APA.
  • The DACA program imposed rights and obligations on individuals, making it a substantive rule that should have undergone notice-and-comment rulemaking.
  • The future of DACA remains uncertain and may face further litigation and potential review by the U.S. Supreme Court.
Uncertainty Looms over Legality of DACA Immigration Policy
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President Barack Obama’s 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program is a substantive rule that did not undergo notice and comment, as required by the Administrative Procedure Act (APA). A three-judge federal court of appeals panel unanimously held that the DACA policy is unlawful because it procedurally and substantively violates the APA, was not vetted through the required notice-and-comment rulemaking, and is inconsistent with the Immigration and Nationality Act (INA). ABA Litigation Section leaders are not surprised by this ruling and believe that uncertainty will loom over the program until judicial finality is reached or further congressional or agency action is taken.

DACA Navigates a Rocky Path Through the Courts

The conflict giving rise to Texas v. United States began on June 15, 2012, when the Secretary of the Department of Homeland Security (DHS) announced the DACA program. The program was described in a three-page memorandum that, in part, directed that the removal of certain immigrants who had unlawfully entered the United States as children should be deferred and that these individuals should receive certain benefits.

To qualify for the DACA program, a person had to (i) arrive in the United States under the age of 16; (ii) continuously reside in the United States for at least five years preceding the issuance of the memorandum and be present in the United States on June 15, 2012, the date of the memorandum; (iii) currently be in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; (iv) not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, and did not otherwise pose a threat to national security or public safety; (v) not be above the age of 30 as of the date of the memorandum; and (vi) pass a background check. Approximately 1.5 million people were covered by the DACA memorandum.

In November 2014, DHS issued a subsequent memorandum to expand the DACA program and institute a related program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The DAPA program would have removed the age limit in the DACA memorandum, allowed people who entered the U.S. as late as 2010 to qualify for the program, and extended the deferred action period from two years to three years. Approximately 4.3 million parents of U.S. citizens or lawful permanent residents would have qualified for the DAPA program.

In a lawsuit also titled Texas v. United States, 26 states filed suit in the U.S. District Court for the Southern District of Texas to block DAPA, and the court entered a nationwide injunction. The U.S. Court of Appeals for the Fifth Circuit affirmed the injunction, holding that the DAPA program likely violated the APA’s procedural requirements because it was a substantive rule that required notice and comment, and that the program substantively violated the APA because it was “manifestly contrary” to the INA. The Supreme Court of the United States confirmed the Fifth Circuit ruling in a per curiam opinion by an equally divided eight-member court.

In 2017, after a change in presidential administrations, the newly installed attorney general determined that the DACA memorandum was similarly unlawful and issued a memorandum rescinding DACA. Subsequently, in 2020, in Department of Homeland Security v. Regents of the University of California, the U.S. Supreme Court vacated the rescission memorandum on the grounds that it violated the APA. The high court determined that the rescission decision was also reviewable under the APA because the DACA memorandum was more than a “non-enforcement policy.” It held that the rescission decision was arbitrary and capricious because DHS did not explain why it was terminating the “forbearance policy at the heart of DACA” instead of just the benefits alone and because DHS “failed to address whether there was ‘legitimate reliance’ on the DACA Memorandum.”

DACA’s Future Clouded by Procedural and Substantive Challenges

In May 2018, during the litigation regarding the rescission of DACA, the current Texas v. United States case was filed in the Southern District of Texas, where eight states—Texas, Alabama, Arkansas, Kansas, Louisiana, Nebraska, South Carolina, and West Virginia—along with the governors of Maine and Mississippi, challenged DACA’s validity. A group of 22 DACA recipients and the State of New Jersey intervened in the matter as codefendants.

After the Supreme Court’s decision in DHS v. Regents, the Texas-led coalition of states and the DACA recipients filed cross-motions for summary judgment. The district court ruled in favor of the coalition of states and held that the DACA memorandum violated procedural and substantive requirements of the APA, vacated the memorandum, and remanded the matter to DHS for further consideration, but temporarily stayed the decision as it applies to current DACA recipients.

In its decision, the district court explained that DACA was procedurally deficient because the memorandum failed to allow for the required notice and comment, and that it was not a general policy statement exempt from the APA’s notice and comment requirements as it involved “significant rights and obligations” and “fixed criteria.” The court also held that the DACA memorandum substantively violated the INA and other immigration statutes because “Congress’s clear articulation of laws for removal, lawful presence, and work authorization illustrates a manifest intent to reserve for itself the authority to determine the framework of the nation’s immigration system.”

The district court temporarily stayed its vacatur as to the approximately 600,000 existing DACA recipients and permitted DHS to accept new and renewal DACA applications but enjoined the DHS from approving any new applications. In response to the district court’s decision, the defendants appealed to the Fifth Circuit, and DHS issued a notice of proposed rulemaking to “preserve and fortify DHS’s DACA policy.” The agency promulgated a Final Rule on August 30, 2022, after oral argument (but before a decision) at the Fifth Circuit.

The Fifth Circuit affirmed the district court’s judgment regarding the procedural and substantive provisions of the DACA memorandum but remanded the case to the district court—rather than to DHS—in light of the agency promulgating the final rule. The appellate court declined to review DHS’s final rule because it did not have the administrative record before it and was unable to determine whether there were material differences between the administrative record of the final rule and the DACA memorandum record before the district court. The Fifth Circuit vacated the lower court’s remand to DHS and remanded the matter to the district court for further proceedings regarding the final rule.

Policy Statements vs. Substantive Rules

The Fifth Circuit reviewed de novo the lower court’s grant of summary judgment in favor of the coalition of states and applied the same standards as the district court. It explained that the APA requires that substantive rules undergo notice and comment while policy statements do not. The court stated that it distinguishes policy statements from substantive rules based on two criteria: “whether the pronouncement (1) imposes any rights and obligations and (2) genuinely leaves the agency and its decision-makers free to exercise discretion.” The Fifth Circuit determined that the DACA memorandum was a substantive rule under both factors.

Under the first factor, the appellate court concluded that the 2012 DACA memorandum imposes rights and obligations. Echoing the Supreme Court’s language in the DHS v. Regents decision, the Fifth Circuit explained that DACA conferred “affirmative immigration relief” through a “standardized review process,” which provided formal notice indicating whether applicants would receive forbearance, and that this process had “none of the tentative character of a policy statement.” Additionally, the Fifth Circuit stated that the relief was of “vital importance” to the over 800,000 people who have obtained forbearance under the program, with the two-year forbearance grant serving as “an affirmative act of approval” and the eligibility for benefits such as work authorization and access to Social Security and Medicare.

Under the second factor, the Fifth Circuit determined that language within the DACA memorandum conferred discretion, such as language instructing the agencies to review DACA applications “on a case by case basis,” language describing the program as an “exercise of prosecutorial discretion,” and a list of criteria that individuals have to meet to qualify for the program. That court concluded, however, that even viewing the evidence in the light most favorable to the defendants, DACA was not a policy statement even if agents had some discretion to reject applicants who met the DACA program criteria. It held that the DACA memorandum “created a detailed, streamlined process for granting enormously significant, predefined benefits to over 800,000 people. This constitutes a substantive rule.”

DACA Violates APA’s Substantive Requirements

The Fifth Circuit also held, as the district court did, that the DACA memorandum also violated the APA’s substantive requirements. The appellate court explained that the APA requires that courts “‘hold unlawful and set aside agency action’ that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ or ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.’” Assuming without deciding that the two-part framework articulated in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., applied, which determines whether a court should defer to an agency’s interpretation of a statute, the appellate court examined “whether Congress has ‘directly addressed the precise question at issue’” and whether the statutory intent is ambiguous.

Under the first prong of the Chevron framework, the Fifth Circuit concluded that Congress had addressed the precise question at issue concerning DACA in its discussion of DAPA in the original Texas v. United States case. In its DAPA decision, the Fifth Circuit explained that the INA “expressly and carefully provide[d] legal designations allowing defined classes of aliens to be lawfully present[,] identified narrow classes of aliens eligible for deferred action,” and specified what individuals were eligible for work authorization. The Fifth Circuit explained that “Congress’s rigorous classification scheme forecloses the contrary scheme in the DACA Memorandum” and that “DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits.” The appellate court concluded that DACA fails the first step of Chevron.

The Fifth Circuit also concluded that “even if the INA were ambiguous, DACA would fail at step two because it is an unreasonable interpretation of the INA.” The court explained that DACA, like DAPA, “undoubtedly implicates questions of deep economic and political significance that are central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.” The appellate court concluded that, like DAPA, DACA “is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’” and held that DACA violates the substantive requirements of the APA.

Practitioners Should Proceed with Caution While DACA Is Litigated

Litigation Section leaders are unsurprised by the Fifth Circuit’s ruling regarding the DACA memorandum based on prior rulings. “I am not surprised by the Fifth Circuit’s ruling, based on its reasoning which mirrors its reasoning in a related and similar case involving DAPA,” notes Eshigo P. Okasili, Silver Spring, MD, cochair of the Section’s Family Law Litigation Committee.

Section leaders also believe that the future of DACA is uncertain, and action should be taken to provide certainty around immigration policies for DACA-eligible individuals. “The future of DACA will likely remain uncertain for the foreseeable future,” states Okasili. “It is likely that the case will eventually wind its way back up to the U.S. Supreme Court. With the current makeup of that Court, the future of the DACA program is very uncertain,” asserts Martin Gauto, Los Angeles, CA, working group member of the Section’s Children’s Rights Litigation Committee.

DACA will likely continue to battle its way through the courts until judicial finality is reached or additional action is taken by Congress or DHS. “Like the sword of Damocles, it will continue to hang over the heads of DACA-eligible foreign nationals, who will likely continue to be caught in the torrents of litigation and to be used as pawns by politicians,” states Okasili. “Alternatively, DACA could be ruled unconstitutional, based on Justice Scalia’s concurrence in part and dissent in part in Arizona v. United States. It is, therefore, highly likely that DACA will be phased out over a specific period of time or could face a sudden death, if phased out summarily with immediate effect,” Okasili clarifies.

Section leaders also observe that uncertainty regarding the DACA policy is disruptive to those affected by a fluid immigration policy. “It is imperative for Congress to act quickly to codify a clear pathway to citizenship for these people who only know the United States as home and are woven into the fabric of our communities,” advises Gauto. And while the battle to determine the lawfulness of the DACA policy continues, Section leaders advise immigration practitioners to continue to serve clients but to proceed with caution. “The fate of most, if not all, immigrants is tied to their immigration status,” observes Okasili.

The reprieve permitted for existing DACA recipients may be a temporary victory. “While no new DACA applications may be filed at this point, the Fifth Circuit ruled that current DACA recipients may keep their deferred action and work authorization. U.S. Citizens and Immigration Services may continue to adjudicate renewal requests for those who meet the requirements for filing renewals,” explains Gauto.

“Attorneys whose clients include DACA recipients and/or DACA-eligible foreign nationals should proceed cautiously. They should stay informed about developments pertaining to DACA to avoid exposing their DACA-recipient and DACA-eligible clients to the risk of adverse immigration consequences,” advises Okasili. “Counsel should refer their DACA recipient/eligible clients to immigration lawyers before proceeding with matters that pertain to foreign travel, DACA renewal/first-time applications, litigating criminal charges, multiple misdemeanors involving DACA recipients and/or DACA-eligible clients,” Okasili warns.


  • Michael Stefanilo Jr., “Roots of ‘Deported Alien’ Statute Found Unconstitutional,” Litigation News (May 19, 2022).
  • C. Thea Pitzen, “Immigration Decision Holds Ethical Lessons for Lawyers,” Litigation News (Oct. 19, 2020).
  • Cassandra Robertson, “Nationwide Injunctions, Immigration, and Civil Rights Litigation,” Civil Rights Litig. (Aug. 5, 2016).