On Wednesday, the Biden administration and promigrant advocates urged federal appellate judges not to repeal an Obama-era policy which provided work authorization and protection for hundreds of thousands of undocumented immigrants who came to America as children.
Brian Boynton, a Justice Department lawyer representing the administration, implored the New Orleans-based 5th Circuit Court of Appeals to reject arguments by a coalition of Republican-controlled states led by Texas that has argued the Deferred Action for Childhood Arrivals (DACA) program is unlawful.
Boynton stated that Texas did not have standing to sue federal officials. He argued that immigration officials have wide discretion to protect unauthorized immigrants from being deported and allow them to work legally.
Boynton stated to the three-judge panel that "the 2012 DACA memorandum in dispute in this case was lawful in its entirety" and should be upheld.
Judd Stone (Texas' solicitor general) said that the state had standing and cited costs related to DACA beneficiaries. He stated that the court should confirm a July 2021 decision by a federal judge, who had closed DACA to new applicants in 2012 after concluding that the Obama administration lacked the authority to implement the policy.
Andrew Hanen, U.S. district judge, also stated that DACA was not properly enacted in his ruling from last summer. He allowed current enrollees to keep their two-year work permits valid and deportation deferrals in place until either the Supreme Court or the 5th Circuit ruled.
Stone asked the 5th Circuit not to grant Hanen's appeal. He cited Hanen's 2015 decision to block DACA-like policies that the Obama administration tried to implement in order to stop the deportation or deportation of certain undocumented immigrants and their children who were U.S citizens or residents.
"Here are we seven years later. Stone stated that Congress has rejected the Dream Act every time it was proposed. He was referring to bills that would allow DACA recipients to gain citizenship.
Wednesday's oral arguments were heard on Wednesday by Chief Judge of the 5th Circuit Priscilla Richardman, a Presidential appointee; and judges James Ho, and Kurt Engelhardt who were appointed by President Donald Trump.
Ho raised most of the questions. He was skeptical about the Biden administration’s claim that Texas doesn't have the legal standing to challenge DACA. Ho noted that DACA protects beneficiaries against deportation and gives them access some benefits such as work permits, driver's licenses, and other benefits.
"It was not only a forbearance program, but an affirmative immigrant rewrite, basically," Ho stated, citing a June 2020 Supreme Court decision that prevented the Trump administration's ending DACA.
The fate of over 600,000 DACA recipients could be decided by the 5th Circuit's decision. It is expected that it will be published later in the year. The conservative-leaning appellate court ruled against many immigration and border policies implemented by the Obama administrations.
It could be appealed directly to the Supreme Court or the entire 5th Circuit, but a decision that sides with Texas would put 616,000 beneficiaries in legal uncertainty and infuse urgency into the immigration debate. This is despite intense divisions about U.S. border policies.
New Jersey's Jeremy Feigenbaum represented Texas in the case and questioned Texas' decision not to contest DACA for several years. On Wednesday, he stated to the three-judge panel that DACA's end would have serious consequences for the country. This was in addition to the impact on immigrants who were enrolled in it over the past 10 years.
Feigenbaum, New Jersey's solicitor general, stated that "now that we are a decade later, eliminating DACA will cause extraordinary disruption for recipients and employers, their citizen child, and states."
Stone, the Texas lawyer, stated that the state isn't asking the court for an order to the government to deport or take any "offensive immigrant action" against a specific individual. He said that Texas is challenging the government’s ability to allow DACA recipients legal presence in the U.S.
Trump tried to terminate DACA in its effort to crack down illegal and legal immigration. However, federal court rulings including the Supreme Court decision that found that officials failed to take proper procedural steps to end DACA, stopped that attempt.
The Trump administration reduced the program's validity and deportation protections to one year. It also banned first-time applications.
A federal court in New York found that Chad Wolf, acting Homeland Security Secretary, was unable to modify DACA as he had been wrongly appointed. This ruling opened DACA to new applicants for several more months until Hanen's July 2021 decision closed the program.
In accordance with President Biden's directive to "fortify DACA", the Department of Homeland Security will in the next months finalize a rule to codify the program as a federal regulation and seperate the policy's deportation protections, from the grant of work authorisation.
Although the regulations were created to address legal concerns raised by Republican-led states, it is not clear if they will save DACA.
Boynton, the Justice Department attorney told the panel that if the 5th Circuit finds DACA illegal in some areas, it should not overturn those parts.
Thomas Saenz, president and CEO of the Mexican American Legal Defense and Educational Fund, argued for DACA's legality Wednesday. He said that the government shouldn't remove the work authorization clause from the program.
Saenz stated that people cannot be allowed to deferred action and invited and permitted to remain in the United States without providing the necessary resources to support their families and themselves. "Failing to do this will cause the same harms that right-wing predicts, which is that people will eventually need to depend on other people."