Legal Sidebari

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 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 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

---

Congressional Research Service
2
regulations. The rule will go into effect on October 31, 2022. In the meantime, on October 5, 2022, the
Fifth Circuit affirmed the district court’s ruling that the original DACA program is unlawful. The court
continued the district court’s stay of its ruling that allows existing DACA recipients to maintain their
status pending further appeal in the case. The Fifth Circuit also remanded the case to the district court to
consider the legality of DHS’s final rule codifying the DACA program in federal regulations in light of
the Fifth Circuit’s decision.
As a result, current DACA recipients may retain their status and lawfully remain and work in the United
States for the time being. They may also apply to renew their status every two years and seek permission
to travel abroad and return to the United States pursuant to “advance parole.” On the other hand, the Fifth
Circuit’s decision bars DHS from approving new, first-time DACA applications and granting status to
those applicants pending the outcome of the litigation (but the court’s order does not bar DHS from
accepting new applications for processing as required under a separate district court order). Consequently,
applicants (or prospective applicants) who have not yet obtained DACA status cannot be granted it while
the Fifth Circuit’s decision remains in place.
What Are the Main Legal Issues in Texas II?
The salient issue in Texas II is whether DHS has authority to implement DACA. The INA establishes an
intricate scheme of restrictions as to which categories of aliens may enter or remain in the United States
and under what conditions. Has DHS violated that scheme of restrictions, or its constitutional duty under
the Take Care Clause to pursue faithful execution of those restrictions, by implementing a program with
potential to provide temporary relief from removal, work authorization, and other benefits to more than 1
million persons whose presence violates the INA? Or does DACA fall within the scope of the
enforcement discretion that DHS, like all federal enforcement agencies, enjoys to allocate its
prosecutorial resources in the manner that the agency determines best serves the national interest,
particularly given that the number of unlawfully present aliens in the United States far exceeds DHS’s
removal capacity for any given year?
The Fifth Circuit’s October 5, 2022, decision in Texas II held that DACA conflicts with the INA’s
regulatory scheme because it “creates a new class of otherwise removable aliens who may obtain lawful
presence, work authorization, and associated benefits” that Congress never authorized. The Fifth Circuit
also rejected the government’s assertion that DACA is a proper exercise of DHS’s discretion over
immigration enforcement, reasoning that such discretion does not encompass the ability to confer lawful
presence and associated benefits to removable aliens. Other federal courts reasoned to the contrary in
lawsuits related to the Trump Administration’s efforts to terminate DACA (those decisions, however, are
no longer good law after the Supreme Court ultimately struck down the termination on other grounds, as
discussed below).
The plaintiff states in Texas II have also argued that DHS violated procedural rules by implementing
DACA without conducting notice and comment rulemaking procedures. The Fifth Circuit agreed with the
district court that in establishing the DACA program by way of the 2012 memorandum, DHS had violated
the Administrative Procedure Act’s (APA’s) procedural notice and comment requirements. As noted,
however, during the pendency of the government’s appeal to the Fifth Circuit, DHS promulgated a new
DACA regulation, and that final rule was issued after a period of notice and comment. In its final rule,
DHS addressed public comments about DACA’s legality. The agency argued that DACA does not violate
the INA because it merely confers—as an exercise of the executive branch’s enforcement discretion—a
“discretionary, temporary, and nonguaranteed reprieve from removal” and creates no legally enforceable
right for aliens to remain in the United States under a “blanket grant of lawful immigration status.” DHS
also weighed the costs and benefits of DACA and potential alternatives to that program. As discussed in
this Sidebar, the Fifth Circuit’s decision, which affirmed the district court’s ruling that the original DACA

---

Congressional Research Service
3
program was unlawful, has remanded the case to the district court to review the more recent 2022 DACA
rule.
How Does Texas II Relate to the 2020 Supreme Court
Decision About DACA (DHS v. Regents of the University
of California)?
The Regents case concerned the legality of DHS’s 2017 decision to rescind DACA. Several lower courts
held that the rescission was likely unlawful under the “arbitrary and capricious” standard of the APA
because DHS had not “adequately explained” the reasons for the rescission. In its 2020 decision, the
Supreme Court agreed that DHS had offered insufficient reasoning in support of its DACA rescission
(though the Court observed that DHS could end DACA if it provided an adequate explanation and
satisfied any other procedural requirements). In contrast, the Texas II litigation concerns the legality of
DACA itself, an issue that the Supreme Court did not address in Regents. In short, the Texas II case is
about the legality of DACA, while Regents concerned the legality of DACA’s termination.
How Does Texas II Relate to the Texas I Litigation
Concerning the Deferred Action for Parents of
Americans and Lawful Permanent Residents (DAPA)
Initiative?
In 2014, two years after the DACA initiative was launched by the Obama Administration, DHS
announced a two-part initiative that would have (1) expanded DACA to cover more childhood arrivals
and extended the deferred action period from two to three years, and (2) granted similar relief to certain
unlawfully present aliens with children who are U.S. citizens or LPRs (DAPA). In 2015, the Fifth Circuit
held that this initiative likely violated federal law because DHS failed to comply with notice and comment
procedures when it created this expanded initiative, and the broad relief and associated benefits conferred
by the initiative conflicted with “the INA’s system of immigration classifications and employment
eligibility.” An equally divided Supreme Court affirmed in 2016. The case did not concern the legality of
the original DACA program.
The Texas II litigation, on the other hand, strictly concerns the legality of the original DACA program, as
it was implemented in 2012. In ruling that DACA is unlawful, however, both the district court and the
Fifth Circuit determined that the Fifth Circuit’s reasoning in Texas I—that DHS’s implementation of
DAPA and expansion of DACA violated the INA’s statutory scheme because it exceeded the existing
framework for conferring lawful presence and associated benefits—equally applied to the implementation
of DACA.

---

Congressional Research Service
4
What Options Does Congress Have?
As with most immigration issues, Congress has ultimate authority to decide the future of DACA
legislatively and is not required to wait for a resolution to the Texas II litigation. Congress could terminate
DACA by defunding it or through substantive legislation that clearly prohibits DHS from granting the
types of protections that the program provides. Conversely, Congress could enact a law clarifying that
DHS has authority to implement DACA and other programmatic deferred action programs that confer
collateral benefits. Or, along the lines of the American Dream and Promise Act of 2021, passed by the
House in March 2021, Congress could grant DACA recipients (and, if it wishes, other childhood arrivals
and other groups of unlawfully present aliens) statutory relief. Such relief could include, among other
possibilities, protection from removal, eligibility for specified benefits, and a pathway to LPR status.
More broadly, Congress could consider legislative options that generally address the unlawfully present
population at large, such as a 2021 proposal to “parole” unlawfully present aliens who meet certain
requirements and allow them to remain and work in the United States for renewable periods of time.

Author Information

Hillel R. Smith

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10625 · VERSION 4 · UPDATED

---