Washington, D.C., February 10, 2021: A Federal Court in Washington, D.C. is considering a new case that may decide the future of the DACA program.

What is DACA?

DACA is a program created by President Obama in 2012, and is formally called “Deferred Action for Childhood Arrivals.” The DACA program allows youth who came to the U.S. illegally as children to obtain protection from deportation and a temporary work permit. In total, approximately 800,000 people were able to qualify under the DACA program.

DACA and the Trump administration

The DACA program lived through four difficult years under President Trump, who tried multiple times to shut down and terminate the program – without success. In fact, the US Supreme Court issued a ruling in June 2020 in which they recognized that President Trump had the power to close the program, but simply did not follow the requirements established by federal regulations to do so. However, President Trump’s efforts meant that new DACA applications were not possible and also made it very difficult to renew the work permits that allow DACA persons to work legally in the United States.

New initiatives from President Biden

As soon as President Biden took office, he immediately reopened the DACA program to accept new applications. Additionally, President Biden has adopted several other executive measures to expand the relief offered to protect undocumented persons from deportation.

Case before the Federal Court

Texas and eight other states have filed a complaint in Federal Court, arguing that the Executive Order on DACA signed by President Obama was unconstitutional. According to the Texas Attorney General, this Executive Order improperly imposes expenses on the states of the US. Unfortunately, this same legal argument was successfully accepted by the Federal Court of Appeals for the Fifth Circuit (with jurisdiction over Texas and Louisiana) in 2016 and resulted in the closure of the DAPA program – also initiated by President Obama. Therefore, it is possible that this new attempt by the Attorney General of Texas and other states will be successful.

Despite the political tug of war that has always accompanied the DACA program, it is highly likely that any process in federal court will take several years.

In fact, the Federal Court is unlikely to make a final decision simply closing the DACA program. On the contrary, if the Court concludes that the program is unconstitutional, the judgment of the court would likely establish a transition period. And, obviously, the sentence would be appealed to the Court of Appeals and eventually to the Supreme Court. So this is going to take a while!

Also, there is always the possibility that President Biden’s administration will act in advance to protect the DACA program or pass an immigration reform law.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.