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Activists listen during a news conference marking the 10th anniversary of the creation of Deferred Action for Childhood Arrivals (DACA) on June 15, 2022 in Washington, D.C.

Activists listen during a news conference marking the 10th anniversary of the creation of Deferred Action for Childhood Arrivals (DACA) on June 15, 2022 in Washington, D.C. (Photo: Anna Moneymaker/Getty Images)

Immigrant Rights Advocates Tell Congress to 'Step Up' After Court Declares DACA Illegal

"The writing is on the legal wall, and we cannot sit by awaiting another adverse ruling by the lower court, the Fifth Circuit, or ultimately the Supreme Court," said one attorney.

Kenny Stancil

After a federal appeals court ruled Wednesday that a program shielding roughly 600,000 young undocumented immigrants from deportation is illegal, progressive advocates implored Congress to do what it has refused to do for years: pass legislation guaranteeing permanent protections for people brought to the United States as children.

"DACA recipients can't continue living court ruling to court ruling."

The decision from a three-judge panel on the right-wing U.S. Court of Appeals for the Fifth Circuit allows those already enrolled in the Deferred Action for Childhood Arrivals (DACA) program to renew their status but finds the 2012 memo establishing it to be unlawful, affirming a 2021 lower court ruling that threw the program's future into jeopardy. The Biden administration, for its part, has been fighting to register new beneficiaries locked out since last year's injunction.

As The New York Times reported:

The judges sent the case back to Federal District Court in Houston to consider a new administration policy issued in August to protect the program. The new regulation was intended to go into effect at the end of the month.

Wednesday's ruling was the latest turn in a series of court rulings and administration actions that over the years has canceled, reinstated, or rolled back pieces of the DACA program. It has long seemed likely that the case would ultimately go to the Supreme Court.

"This decision makes 100% clear that the options for preserving DACA in the courts are dwindling and essentially nonexistent at this point," Jess Hanson, a staff lawyer at the National Immigration Law Center (NILC), told the newspaper. "We really need Congress to step up."

NILC executive director Marielena Hincapié said in a statement that "while the Fifth Circuit's troubling decision does not change who can currently apply for or renew DACA, immigrant youth cannot be expected to continue to live with the constant uncertainty wrought by politicized attacks on the policy."

"DACA is a successful and commonsense policy that has transformed lives, improved our economy, and strengthened our nation," said Hincapié. "It is legally and morally right, but it was always meant to be temporary."

Former President Barack Obama created DACA via executive order in 2012 amid a long-standing failure by federal lawmakers to provide safeguards to undocumented immigrants brought to the U.S. as children. It was designed as a stopgap measure to protect those commonly referred to as "Dreamers" from deportation. The protection lasts two years at a time and can be renewed, but it doesn't include a path to citizenship.

"DACA recipients," said Mario Carrillo, campaigns director at America's Voice, "can't continue living court ruling to court ruling."

Hincapié emphasized that Wednesday's decision "makes clear that the writing is on the legal wall, and we cannot sit by awaiting another adverse ruling by the lower court, the Fifth Circuit, or ultimately the Supreme Court."

"This underscores the urgency for Congress to deliver a permanent legislative solution for immigrant youth, who need the permanency and stability of a pathway to citizenship," she added. "This is a solution that is widely supported by the public, and Congress must follow through. We urge President [Joe] Biden to wield his political and legislative prowess to achieve this much-needed legislative victory swiftly."

Characterizing DACA as "hanging by a judicial thread," Voto Latino also urged Congress to "pass the DREAM Act now."

Eliana Fernández, director of Faith in Action's campaign to end the mass criminalization, detention, and deportation of immigrants, tweeted: "I am tired of having my life depend on a court decision. I can't plan my life in two years increments. My kids and I deserve stability. We deserve better, period. We need the president and Congress to create a pathway to citizenship now."

Biden, for his part, issued a statement expressing his disappointment in the Fifth Circuit's decision, which he called "the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade."

"This underscores the urgency for Congress to deliver a permanent legislative solution for immigrant youth."

"While we will use the tools we have to allow Dreamers to live and work in the only country they know as home, it is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship," said the president.

Rep. Karen Bass (D-Calif.) called it "unfathomable" that so many people "who have only known the U.S. as home are at the mercy of the courts." She vowed to keep working with Rep. Lucille Roybal-Allard (D-Calif.) "to end this debate for our Dreamers" in the Los Angeles areas they represent and throughout the country.

Erika Andiola, communications director at the Young Center for Immigrant Children's Rights, acknowledged that the program "has never been enough to protect immigrant communities long-term."

"But ending the program without ensuring permanent protections would be yet another cruel attack against immigrants that could have devastating consequences for DACA recipients and eligible youth," she said.

"There has been recent news that President Biden is considering taking executive action that would direct immigration agents to not prioritize us for deportation if the courts were to rule to end DACA," Andiola continued. "Immigration and Customs Enforcement (ICE) has long been a rogue agency. Simply directing them to not deport DACA recipients will not guarantee our safety, nor will it protect our access to work permits if the program ends and their permits expire."

"Any action to protect DACA recipients like me without ensuring we could continue to work in the U.S. and remain with our family is setting us up for failure," she added. "The Biden administration and Congress must deliver permanent protections for immigrant communities before it's too late."

With Democrats clinging to razor-thin majorities in the House and Senate—where the 60-vote filibuster that gives the GOP minority veto power over most legislation remains a major obstacle—time is running short for them to enact a long-term solution before next month's midterm elections or during the lame-duck session, which could be the last time they control Congress for years.

FWD.us president Todd Schulte warned that "without legislation protecting DACA recipients passing in 2022, we will almost certainly see nearly 700,000 DACA recipients lose work authorization, lose protection from deportation, and have their lives thrown into chaos in the very near future."

"The urgency for Congress to act now, in 2022, is higher than it has ever been," he added.

Karen Tumlin, a civil rights attorney and director of the Justice Action Center, implored Congress to "get it together and recognize that this never-ending court battle is a toxic emotional rollercoaster that DACA recipients and the people who love them should not have to ride for another day."

"It's past time for Congress to codify into law what Americans on both sides of the aisle believe," she said. "Folks eligible for DACA are home and need permanent protection."


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