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Feds Seek to Toss DACA Challenge, Say Regulations Make Case Moot

Sept. 2, 2022, 4:16 PM

States’ legal arguments against the Deferred Action for Childhood Arrivals program will be moot after the government’s new regulations take effect, the Biden administration told a federal appeals court.

The government’s brief, filed Thursday in the US Court of Appeals for the Fifth Circuit, responded to the court’s directive that the administration and GOP-led states suing over the 10-year-old immigration policy file supplemental briefings in light of the new regulations.

The appeals court, which heard oral arguments July 6, is considering arguments over the legality of DACA.

The program, established by the Obama administration in 2012, allows some 600,000 young immigrants brought to the US as children to seek work authorization and protections from deportation.

The Biden administration Aug. 24 issued the final rule—the first regulations covering DACA—in a bid to fortify the program against legal challenges. The rule hews largely to the existing policy, although it contains several severability provisions that would allow the rest of the program to remain in place if work authorization provisions were deemed invalid.

The regulations only apply to renewal requests from existing DACA recipients. A federal district court in Texas last year found that the program was implemented unlawfully and issued an order blocking new applications.

Immigration advocates have complained that the DACA rule was inadequate because it lacked permanent immigration protections. It also failed to deliver on demands for broader program eligibility, continuing to apply only to dreamers who’ve lived in the US since 2007, they said.

Because the Department of Homeland Security has now followed the rulemaking procedures under the Administrative Procedure Act, “there will be no continuing controversy regarding whether DHS was required to undertake notice-and-comment procedures before promulgating the DACA policy,” the Biden administration said in its brief.

And because the rule replaces a 2012 executive memo with substantively identical regulations, the Fifth Circuit should address the validity of the final rule at the same time that it reviews the district court’s injunction, government lawyers argued.

States’ Response

Attorneys for Texas and other states challenging DACA argued that any procedural challenges to the program wouldn’t be moot until the rule takes effect Oct. 31. Until then, the court should decide the case without considering the effects of the final rule, they said.

The final rule is “no less substantively unlawful than its predecessor,” the states argued, because DHS exceeded its authority in conferring substantive immigration benefits.

“Indeed, the Supreme Court, this Court, and its sister circuits have refused to hold that a case is moot when one government action has simply been replaced by a similar one that results in some or all of the same harm,” their brief said.

Attorneys for the state of New Jersey and the Mexican-American Legal Defense & Educational Fund, which intervened on behalf of DACA, argued in separate briefings Thursday that the appellate court should remand the case back to the district court to consider any challenges to the final rule.

The case is Texas v. United States, 5th Cir., No. 21-40680, briefs filed 9/1/22.

To contact the reporter on this story: Andrew Kreighbaum in Washington at

To contact the editors responsible for this story: Laura D. Francis at; Martha Mueller Neff at