(CN) — Fighting to save a program that has allowed more than 600,000 undocumented immigrants to build their lives in the U.S., the Biden administration told a Fifth Circuit panel Wednesday it is part of the government’s solution to its lack of resources to deport the 11 million immigrants living in the country without papers.
Joined by eight other Republican-led states, Texas sued in May 2018 to undo the Deferred Action for Childhood Arrivals program, arguing then-President Barack Obama overstepped his authority when he launched DACA in 2012 as a workaround of Congress’ inability to pass legislation reforming the nation’s immigration laws.
At root, Texas’ argument that DACA is unlawful relies on age-old nativist grievances: Undocumented immigrants take jobs that could go to unemployed U.S. citizens and residents, and they are a drain on states’ taxpayer-funded budgets.
Texas claims the more than 100,000 DACA recipients in the state cost it over $250 million per year in social services, health care and education costs, and that they have an advantage in obtaining jobs because under the Affordable Care Act businesses don’t have to provide them with health insurance as they do for other employees.
But no group of undocumented immigrants has garnered more sympathy, with numerous polls showing a large majority of Americans support giving DACA recipients, also known as "Dreamers," a pathway to citizenship.
Even former President Donald Trump, whose bid to end the program was blocked in a 5-4 ruling by the Supreme Court in June 2020, said early in his presidency DACA was a “very, very difficult subject” for him because “you have some absolutely incredible kids.”
The more than 600,000 people in the program come from 150 different countries, but 80% are from Mexico.
They consider themselves Americans and often have few ties to their home countries because they were brought to the U.S. illegally as children or became undocumented along with their parents when their visas expired.
DACA gives them protection from deportation and allows them to get federal work permits and driver’s licenses for renewable two-year periods.
But its advantages only go so far: enrollees can’t vote or receive any federal benefits; they can’t apply for health insurance, unless it’s through their employers; and if they are convicted of any crime they could lose their status and be deported.
U.S. District Judge Andrew Hanen, a George W. Bush appointee, declared DACA unlawful in July 2021. He vacated the program and ruled the Department of Homeland Security could not accept any new applicants. But he stopped short of terminating it for people already enrolled. He stayed his vacatur order pending appeal.
New Jersey and 22 DACA recipients intervened in the case to try to save the program.
Arguing before a three-judge panel of the Fifth Circuit on Wednesday in New Orleans, New Jersey Assistant Attorney General Jeremy Feigenbaum said Hanen was wrong to vacate the 2012 memo creating DACA and should have remanded it to DHS instead to fix any defects.
“Texas chose to challenge DACA only years after policy issued,” Feigenbaum said. “That choice matters. Now that we’re a full decade later eliminating DACA would cause extraordinary disruption for recipients, their U.S. citizen children, employers and states.”
He focused on the hundreds of DACA recipients who serve in the U.S. military.
“The moment there’s a final judgment we would have an individual serving in the armed forces who is a DACA recipient on a Monday who would no longer be able to serve there on a Tuesday,” he said.
The District of Columbia and 22 states either led by Democratic governors or with one legislative chamber controlled by Democrats said in an amicus brief they have a profound interest in keeping DACA alive.
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