September 28, 2022

The Biden administration and pro-immigration advocates on Wednesday urged a panel of federal appeals judges to maintain an Obama-era policy that provides work permits and deportation protections to hundreds of thousands of unauthorized immigrants who arrived in the United States as children.

Brian Boynton, a Department of Justice attorney representing the administration, appealed to the New Orleans-based Fifth Circuit Court of Appeals to dismiss arguments made by a coalition of Texas-led Republican-controlled states that argued that the Deferred Action for Childhood Arrivals (DACA) program was illegal.

During oral arguments in court, Boynton said Texas lacks the capacity to sue the federal government, and argued that immigration officials have broad discretion to protect unauthorized immigrants who do not pose a threat to public safety from deportation and allow them to work legally.

“The 2012 DACA memorandum challenged in this case is legal in its entirety and should be upheld,” Boynton told the three-judge panel.

But Judd Stone, the Texas attorney general, said the state already has a place, citing healthcare-related costs for DACA recipients. He said the court should uphold a July 2021 ruling by a federal district judge who closed DACA to new applicants after it was found that the Obama administration did not have the authority to enact policy in 2012.

In his ruling last summer, US District Judge Andrew Henein also said DACA had been improperly activated. But he left the program intact for current enrollments, allowing them to continue renewing work permits for two years and delay deportation until the Fifth Circuit or the Supreme Court ruled the case.

Stone urged the Fifth Circuit to reject the Biden administration’s appeal of Hanin’s order, citing a 2015 court decision blocking a DACA-like policy the Obama administration had attempted to implement to prevent the deportation of certain unauthorized immigrants with children who are citizens or residents of the United States. .

“Here we are seven years later. Congress has rejected the Dream Act in every Congress since it was proposed,” Stone said, referring to bills that would put DACA recipients on the path to US citizenship.

Oral arguments were heard Wednesday by Fifth Circuit Judge Priscilla Richman, appointed by President George W. Bush; and Justices James He and Kurt Engelhart, who were appointed by President Donald Trump.

Most of the questions were raised by he, who expressed skepticism about the Biden administration’s argument that Texas had no legal standing to challenge DACA. Hu also noted that DACA not only protects beneficiaries from deportation but also gives them access to certain benefits, including work permits and driver’s licenses.

He said, citing June 2020 Supreme Court ruling That stopped the Trump administration from ending DACA.

The Fifth District’s decision, expected later this year, could determine the fate of the more than 600,000 immigrants currently enrolled in the DACA program. The conservative-leaning appeals court has already ruled against many of the immigration and border policies set by the Obama and Biden administrations.

While it could be appealed to the full Fifth Circuit or directly to the Supreme Court, a ruling siding with Texas and closing the DACA would put 616,000 beneficiaries in legal limbo and lend a sense of urgency to the congressional immigration debate, which has remained. It has been deadlocked on the issue amid deep divisions over US border policy.

Jeremy Feigenbaum, who represented New Jersey, which intervened in the case, questioned the Texas decision to wait several years to challenge DACA. Because it has existed for 10 years, he told the three-judge panel on Wednesday, DACA’s demise would have negative effects on the country, other than the immigrants enrolled in the program.

“Now a full decade later, the elimination of DACA will lead to extraordinary disruption for beneficiaries, employers and their co-citizens and their descendants,” said Feigenbaum, who serves as the attorney general for New Jersey.

Stone, the attorney representing Texas, said the state does not require a court to order the government to deport or take “abusive immigration actions against a specific individual.” But he said Texas is challenging the government’s ability to grant DACA recipients legal presence in the United States

The Trump administration has attempted to end DACA as part of its efforts to crack down on illegal and legal immigration, but that termination has been blocked by federal court rulings, including a Supreme Court ruling that found officials did not take the correct procedural steps to end the policy. .

After that ruling, the Trump administration scaled back the program, reduced the validity of work permits and deportation guarantees from two years to one year, and banned first-time applications.

But a federal court in New York in December 2020 have found That Acting Secretary of Homeland Security Chad Wolf lacked the authority to change DACA because he had been inappropriately appointed. This ruling reopened DACA to new applicants for several months, until Hanen’s order in July 2021 closed the program again.

As part of a directive from President Biden to “immunize” DACA, the Department of Homeland Security is expected in the coming months to finalize a rule codifying the program into a federal regulation, separating deportation policy protections from granting work authorization.

The regulations are designed to address legal concerns raised by Republican-led states, but it is unclear whether they will ultimately save DACA.

If the Fifth Circuit concludes that some parts of the DACA are illegal, they should just drop those components, Boynton, a Justice Department attorney, told the panel Wednesday.

But Thomas Sainz, head of the Mexican-American Legal Defense and Education Fund, who also argued in favor of DACA’s legality on Wednesday, said the government should not remove the work authorization clause from the program.

“You can’t allow people to delay proceedings and invite them and allow them to stay in the United States without giving them the means to support themselves and their families,” Sainz told reporters. “Failure to do so will only create the damage the right has always expected, which is that people ultimately need to rely on others.”

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