US: Appeals court sends immigrant deportation case back to consider new rule

A federal appeals court ruled on Wednesday that a programme that has protected hundreds of thousands of young immigrants from deportation was unlawful, but said that current enrollees could renew their status, and sent the case back to a lower court to consider a new Biden administration regulation.

A panel of three judges from the conservative-leaning 5th US Circuit Court of Appeals affirmed a lower court's ruling against the programme, called Deferred Action for Childhood Arrivals (Daca), but remanded the case in light of a new regulation issued in August. The new rule aims to strengthen the programme against legal challenges.

The decision is a mixed one for US President Joe Biden, a Democrat, who said he wanted a permanent pathway to citizenship for Daca recipients — often known as "Dreamers".

Homeland Security Secretary Alejandro Mayorkas said he was "deeply disappointed" by the ruling and the "ongoing uncertainty it creates for families and communities across the country".

The court allowed for the current 594,000 Daca enrollees to maintain their status, but continues to block new applications.

In remanding the case, the appeals court said it did not have enough information to rule on the new regulation, which is set to take effect on October 31, but that the case should be resolved as quickly as possible.

The 46-page opinion signalled that the judges were sceptical of Daca's legality.

"The legal questions that Daca presents are serious, both to the parties and to the public," they wrote.

"In our view, the defendants have not shown that there is a likelihood that they will succeed on the merits."

Former President Barack Obama, a Democrat, whom Biden served under as vice president, created Daca in 2012 after efforts by the US Congress to grant citizenship to immigrants brought to the country as children failed.

In 2018, Texas, and a coalition of states with Republican attorneys general, sued to end Daca, arguing it was illegally implemented. In July 2021, US District Court Judge Andrew Hanen in Texas sided with the states.

Hanen's decision blocked new Daca applications from being processed, but pre-existing Daca recipients were allowed to continue receiving benefits and apply for renewal.

The Biden administration appealed the decision, sending the case to the 5th Circuit.

People with Daca status can obtain work permits, a Social Security number, and in some states, receive driver's licenses and financial aid for education.

Daca recipients have faced years of uncertainty and legal wrangling. Biden's predecessor — former Republican President Donald Trump — tried to end the programme, but was stymied by the Supreme Court.

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The opinion issued on Wednesday was authored by an appointee of former President George W. Bush, a Republican, who was joined by two Trump appointees.

A Department of Justice spokesperson said the department "respectfully disagrees with the decision and will continue to vigorously defend the lawfulness of Daca as this case proceeds". Texas Governor Greg Abbott's office did not immediately respond to a request for comment.

Biden came into office promising to work toward a long-term solution for the "Dreamers," but Republicans and Democrats have found little common ground on immigration in recent years, making a legislative fix before the November 8 midterm elections unlikely.

Daca recipient Mario Lorenzana De Witt, a 27-year old medical student in Syracuse, New York, said he was relieved he could still keep renewing his Daca permit.

“However, the uncertainty still remains and the limbo persists," he said.

"We desperately need a pathway to citizenship."

• Americas