The Legality of DACA: Recent Litigation Developments (CRS Report for Congress)
| Release Date |
Revised Sept. 20, 2023 |
| Report Number |
LSB10625 |
| Report Type |
Legal Sidebar |
| Authors |
Ben Harrington, Hillel R. Smith |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
On September 13, 2023, a federal district court held that a 2022 Department of Homeland Security (DHS)
rule that seeks “to preserve and fortify” the agency’s long-standing Deferred Action for Childhood
Arrivals (DACA) policy was unlawful. Since 2012, certain unlawfully present non-U.S. nationals (aliens,
as the term is used in the Immigration and Nationality Act [INA]) who entered the United States as
children have been permitted to remain and work in this country for renewable two-year periods under the
DACA initiative. During the Trump Administration, DHS sought to rescind DACA on the basis that it was
unlawful. Several federal district courts enjoined DHS from terminating DACA and required the agency
to continue accepting DACA applications and work authorization requests from current DACA recipients.
In 2020, the Supreme Court held that DHS’s rescission of DACA violated procedural requirements in
federal law, thereby leaving DACA largely intact, without deciding on the legality of DACA itself.
In a separate and ongoing case, the State of Texas (joined by eight other states) challenges the legality of
DACA. The plaintiffs rely on a 2015 decision by the U.S. Court of Appeals for the Fifth Circuit (Texas I)
ruling that a related initiative, which would have expanded DACA and granted relief to unlawfully
present parents of U.S. citizen or lawful permanent resident (LPR) children, was unlawful. In the current
case—commonly called Texas II—a federal district court ruled on July 16, 2021, that the 2012 DHS
memorandum establishing DACA was similarly unlawful. On October 5, 2022, the Fifth Circuit affirmed
that decision but ordered the district court to review a final rule that DHS had promulgated during the
pendency of the litigation that codifies the DACA policy set forth in the 2012 DHS memorandum. On
September 13, 2023, the district court held that the final rule is also unlawful because it contains the same
substantive deficiencies as the 2012 DACA memorandum. Under the terms of a previous order, DHS is
barred from adjudicating new DACA applications, but may continue to administer the program for
current recipients while litigation continues.
This Legal Sidebar examines the status of and key issues in the Texas II litigation. For further background
about DACA, see CRS Report R46764, Deferred Action for Childhood Arrivals (DACA): By the
Numbers, by Andorra Bruno.
