Nearly 13 years since the Obama administration first created the Deferred Action for Childhood Arrivals (DACA) initiative, more than 500,000 people who currently benefit from DACA—and their families—remain in a state of cruel uncertainty. The latest in a long-running court battle took place on January 17 in a decision from the U.S. Court of Appeals for the Fifth Circuit. For now, nothing changes for those who have received DACA.
But the ongoing court battle has important ramifications for DACA recipients in an administration that already tried once to end the program and has made clear its intent to maximize arrests and deportations of anyone who it considers to be unlawfully in the United States, no matter what temporary protections against deportation they may have once received.
How did we get here?
The winding road to the Fifth Circuit’s decision began in 2018 when Texas and other states sought to end DACA by challenging the legality of the Memorandum that created it, signed by then-DHS Secretary Janet Napolitano. Separately, the first Trump administration rescinded DACA in 2017. A group of plaintiffs challenged the Trump administration’s rescission of the program, and in June 2020, the Supreme Court agreed with the challengers that the Trump administration’s failure to consider “reliance interests” created by the program violated the law. For a short time, DACA was re-opened.
That victory was short-lived. U.S. District Court Judge Andrew Hanen ruled in July 2021 in the Texas case that DACA was unlawful, halted it nationwide, and prohibited the government from approving any new DACA requests. Judge Hanen’s ruling allowed those with DACA to retain and renew their protections, but no new requests could be processed.
Among Judge Hanen’s reasons for finding DACA unlawful included the fact that the 2012 Memorandum had been issued without notice and comment. The Biden administration sought to address this procedural issue when it published a Notice of Proposed Rulemaking (“NPRM”) in September 2021 and a Final Rule a year later. After the Fifth Circuit upheld Judge Hanen’s decision finding DACA unlawful in 2022, it sent the case back down to the district court to determine the legality of the Final Rule.
In 2023, Judge Hanen again ruled that DACA was unlawful under the Final Rule after rejecting that Texas lacked standing to challenge the initiative, an argument made by the federal government and intervenors (New Jersey and other states friendly to DACA, along with individual DACA recipients represented by the Mexican American Legal Defense and Educational Fund).
The Supreme Court’s decision in a separate case, United States v. Texas (the “Immigration Priorities” case), held that Texas and Louisiana lacked standing to challenge the Biden administration’s enforcement priorities memo. Judge Hanen found that unlike the Immigration Priorities case, which challenged the executive’s exercise of discretion over who to prioritize for immigration enforcement, DACA involves not only “forbearance” (choosing not to take action) but also the provision of affirmative benefits such as employment authorization.
After finding that Texas had standing because it incurred costs such as education and health care from DACA recipients’ presence in the state, Judge Hanen again ruled that DACA was unlawful, vacated the program, issued a nationwide injunction, and stayed his decision to not impact those who had initially received DACA before July 16, 2021. The federal government and intervenors again appealed to the Fifth Circuit. It is this iteration of the case that was decided on January 17, 2025.
What the Fifth Circuit ruling means
The Fifth Circuit mostly upheld Judge Hanen’s decision. Pointing to its prior DACA decision, the court held that the cost to Texas in providing social services to DACA recipients was sufficient to establish standing. Without DACA, the court held, at least some DACA recipients would leave the United States and thus reduce Texas’ costs for education, social services, and medical services. The Fifth Circuit agreed with the district court that the Immigration Priorities case did not change this analysis because DACA provides affirmative benefits instead of just prosecutorial discretion. On the merits, the court pointed to its earlier decision finding DACA substantively unlawful because “the Final Rule is materially identical to the 2012 Memorandum.”
The Fifth Circuit disagreed with the district court in two important respects.
First, whereas Judge Hanen had vacated and enjoined the entirety of the Final Rule, the Fifth Circuit held that that it could be “severed”—that is, the forbearance provisions could be separated from the work authorization provisions. In the Final Rule, DHS had explicitly noted that the components of DACA could “function independently from one another.” This means that it would be possible for DACA’s protections against deportation to survive even if work authorization did not.
Second, the Fifth Circuit held that the nationwide injunction was too broad and that it should be limited to Texas—the only state that had proven injury. Finally, the Fifth Circuit maintained the stay of the district court’s order, pointing to the “immense reliance interests that DACA has created.” This means that again, nothing changes immediately for current DACA recipients.
The path forward is not entirely clear. The legal case heads back to the district court with the Fifth Circuit’s narrowing of the injunction to Texas and its instructions that the forbearance aspects of DACA be separated from benefits—meaning that eventually, only protection from deportation might remain in place, not employment authorization. The case could also wind its way to the Supreme Court. Importantly, even in Texas, DACA recipients can maintain their current status (including work authorization) because the stay of the district court’s order remains in place.
With the change in presidential administrations, it is likely that the Department of Justice may switch position on the case and decline to defend the program in court going forward. While the Trump administration has not explicitly targeted DACA as part of its initial series of harsh executive actions on immigration, it is no secret that Trump White House and DHS hardliners are hostile to the program that they already tried to end once. There is no reason to believe that DACA will be spared this administration’s unrelenting focus on stripping legal protections and maximizing ways to arrest and deport noncitizens. At the same time, nothing changes in the immediate term for those who have DACA—who by the terms of the program have been in the United States since at least 2007—but remain subject to political whims and wrangling in the courts.
FILED UNDER: Fifth Circuit, Trump administration
