On October 5, 2022, the Fifth Circuit Court of Appeals remanded State of Texas v. USA, a case regarding the continuation of the Deferred Action for Childhood Arrivals program ("DACA"), back to the District Court judge who had already ruled against the program’s enactment. The Fifth Circuit agreed with the lower court that the 2012 DACA scheme as implemented by the Obama administration was illegal in that it conflicted with the limits of executive authority found in the Immigration and Nationality Act. Ultimately, however, the Fifth Circuit sent the case back to the District Court to review the newer, updated DACA policy promulgated by the Biden administration. This policy was originally expected to take effect in October 2022.

The DACA program is an attempt to assist the “Dreamers,” children brought into the U.S. unlawfully, usually by their parents or other relatives. There are currently approximately 600,000 DACA recipients. These applicants, innocent of any “immigration violation” in almost all senses of that phrase, receive only two things from the United States: the opportunity to seek an employment authorization card (known as an “EAD") and a temporary reprieve from deportation. DACA does not confer any legal status on those who have received it and, as a general rule, recipients do not qualify for any legal status through the methods that most use to obtain legal permission to remain in the U.S., i.e., via family or employment. Ultimately, because the District Court has already ruled the program unlawful, stating that DACA is “manifestly contrary" to federal immigration law, there is little hope that the program will survive without a legislative fix. Because the lower Court held there is no “clear Congressional authorization" for the program, we must insist that our representatives in the House and Senate do their duty, and finally pass a law to protect these young immigrants.