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~ Research Service
The Legality of DACA: Recent Litigation
Developments
Updated October 7, 2022
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 Deferred Action for Childhood Arrivals
(DACA) initiative. During the Trump Administration, the Department of Homeland Security (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 ])
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 new
case-commonly called Texas II a federal district court ruled on July 16, 2021, that the 2012 DHS
memorandum establishing DACA is 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. 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.
What Is the Current Status of DACA?
The district court's July 16, 2021, ruling in Texas II had invalidated (or, in legal terminology, vacated)
the DACA program set forth in the 2012 DHS memorandum. However, noting that DACA recipients have
relied on the DACA initiative and its associated benefits for nearly a decade, the district court temporarily
stayed the ruling as it applies to current DACA recipients pending an order from the district court, the
Fifth Circuit, or the Supreme Court, on further review. On August 24, 2022, while the government's
appeal was pending, DHS issued a final rule that preserves and fortifies the DACA policy in federal
Congressional Research Service
https://crsreports.congress.gov
LSB10625
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govejcs0001&div=1&collection=&method=preview&ext=.png&size=3)
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