Earlier this week, a federal appeals court agreed with a previous lower court ruling declaring former President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program illegal.

However, the 5th U.S. Circuit Court of Appeals refused to end the DACA program and instead sent the case back to a Texas lower court with instructions to decide if recent Biden administration changes to DACA will protect the program from further legal action.

In 2012, U.S. Department of Homeland Security Secretary Janet Napolitano issued a memo creating the DACA program, which provided illegal aliens who entered the country as children with a renewable two-year work permit and prevented their removal from the country. The program, which is currently used by more than 600,000 illegal aliens, was met with intense backlash from critics for encouraging illegal immigration.

Following DACA’s creation, the program faced several legal challenges, including an attempt by former President Donald Trump to end the program, which led to a 2020 Supreme Court ruling blocking his efforts. Another challenge came from nine states, including Texas, filing a lawsuit in 2018 that claimed the Obama administration’s creation of DACA was unconstitutional without prior approval from Congress.

After U.S. District Judge Andrew Hanen ruled the Obama administration did not have the authority to issue the original memo, which led the Biden administration to make several alterations to DACA in August 2022 to “preserve and fortify” the program, U.S. Homeland Security Secretary Alejandro N. Mayorkas rescinded the 2012 memo and codified DACA into law to protect the program from further legal action.

Over the past few months, the Biden administration has faced increased criticism for inaction along the southern border. In August, U.S. Customs and Border Patrol (CBP) announced 203,598 encounters along the border, bringing this federal fiscal year’s total to a record-breaking 2,150,244. CBP also highlighted how “more individuals encountered at the border will be removed or expelled this year than any previous year.”

However, the current administration continued pushing open border policies, leading Mayorkas to express disappointment in the recent federal appeals court ruling and call for legislative action to protect DACA.

“I am deeply disappointed by today’s DACA ruling and the ongoing uncertainty it creates for families and communities across the country. We are currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response. It is clear, though, that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients.”

Texas Attorney General Ken Paxton reacted to the ruling on social media, slamming the Biden administration for its failure to alleviate the humanitarian crisis along the southern border and praising the recent ruling.

“TX wins big against lawless, open-borders Biden Admin at the 5th Circuit,” said Paxton. “The appeals court just AFFIRMED my team’s trial court win. DACA—part of Dems’ program to flood our country with aliens—is illegal & will stay enjoined. Huge victory for the Rule of Law in America!”

Katy Marshall

Katy graduated from Tarleton State University in 2021 after majoring in history and minoring in political science.