Federal District Court Rules Against 2022 DACA Final Rule

On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas ruled against the 2022 Deferred Action for Childhood Arrivals (DACA) final rule. The final rule was published on Aug. 30, 2022, by the U.S. Department of Homeland Security (DHS) to preserve the department’s 2012 DACA policy. Specifically, the final rule defers the removal of qualifying noncitizens who came to the United States as children and grants them the right to work.

Under the final rule, “deferred action” is defined as a temporary forbearance from removal procedures. Deferred action does not grant eligible individuals any rights or entitlement to stay within the United States. Under deferred action, DHS may initiate criminal or other enforcement action at any time.

In its ruling, the court held that there were no material differences between the final rule and the 2012 policy and the final rule does “nothing to change or resolve the substantive problems” found by district and appellate courts regarding the legality of DACA.

DACA Policy

In 2012, DHS adopted a policy that authorized immigration and customs enforcement personnel to stay, at their discretion, the removal of young people who came to the United States as children.

Under this policy, individuals who met the qualifying criteria and passed a background check were granted deferred action. DHS favored deferred action and considered it “a longstanding practice by which DHS has exercised its discretion to forbear from or assign lower priority to removal action in certain cases for humanitarian reasons, for reasons of administrative convenience or on the basis of other reasonable considerations involving the exercise of prosecutorial discretion.” Since 2012, more than 825,000 people have received deferred action under DACA. 

Important Dates

June 15, 2012
Publication date of the memorandum that established DACA as a homeland security policy.

Aug. 30, 2022
DHS published a final rule to codify and reinstate the DACA policy.

Sept. 13, 2023
The U.S. District Court for the Southern District of Texas ruled against the 2022 DACA final rule.

Legal Challenges

On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the 2012 DACA policy. The court found, among other things, that the DACA policy violated the Immigration and Nationality Act of 1952. In response, on Sept. 28, 2021, DHS published a proposed rule to recommend regulations to preserve and fortify the DACA policy. This final rule implements the 2021 proposal with some amendments that take into consideration the public comments received regarding the proposal. 

On Aug. 30, 202, DHS published a new DACA final rule. The final rule was scheduled to become effective on Oct. 31, 2022, but was enjoined by the District Court during the course of active litigation.

On Oct. 5, 2022, the U.S. Court of Appeals for the 5th Circuit upheld the 2021 Southern District of Texas court decision, declaring the 2012 DACA policy unlawful. However, the Court of Appeals preserved the partial stay issued by the District Court in July 2021 and remanded the case back to the District Court for further proceedings regarding the 2022 DACA final rule.

On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas ruled against the 2022 final rule and held, among other things, that:

• The DACA final rule and policy has many legal deficiencies;
• The court has expressed its concerns about the legality of the program for some time; and
• The solution to the program’s deficiencies “lies with the legislature, not the executive or judicial branches.”

The 2023 District Court decision is expected to be appealed by DHS.

Employment Authorization 

DACA recipients are considered to be lawfully present in the United States. This designation does not grant “lawful status” or authorization to remain in the United States but does allow DACA recipients to remain in the United States without accruing “unlawful presence.”

The DACA final rule creates a specific regulatory provision regarding eligibility for employment authorization for eligible individuals. Under this provision, DACA recipients must have been granted deferred action and must establish an economic need to be eligible for employment authorization. 

DACA employment authorization automatically terminates when DACA expires.

Employment Authorization Documents

DACA recipients who are authorized to work receive an employment authorization document (EAD) from DHS. An official, unexpired EAD is an acceptable List A document for Form I-9. Employers cannot ask DACA recipients for more (or different) work authorization documents based on an individual’s citizenship status or national origin. When using an EAD for Form I-9 purposes, employers should:

• Accept the EAD if it appears to be genuine and relates to the employee presenting it;
• Record the EAD’s document title, number and expiration date in Section 2;
• Reverify the employee’s work eligibility in Section 3 once the EAD expires. 

Impact on Employers

At this time, the District Court ruling does not affect current grants of DACA and related EADs. DHS will continue to “accept and process renewal DACA requests, accompanying requests for employment authorization and applications for advance parole for current DACA recipients.” This means that current DACA recipients will retain protection from deportation, work authorization and the ability to renew these protections while litigation continues. However, the decision prevents DHS from processing new DACA applications.