The uncertain future of DACA

Sarah Paoletti of Penn Carey Law’s Transnational Legal Clinic sheds some light on a federal appeals court ruling earlier this month.

Dreamers from Mexico living in Houston rally in support of the Deferred Action for Childhood Arrivals program, holding signs reading "DACA is temporary; our home is here"
Susana Lujano, left, a dreamer from Mexico who lives in Houston, joins other activists to rally in support of the Deferred Action for Childhood Arrivals program, also known as DACA, at the U.S. Capitol in Washington on June 15, 2022.  (Image: AP Photo/J. Scott Applewhite, File)

A federal appeals court has deferred its ruling on the legality of a program that protects immigrants brought into the United States as children, returning the case to a lower court judge to look at a newly published rule for the Deferred Action for Childhood Arrivals program, known as DACA.

The 5th U.S. circuit court of appeals ordered a lower court judge in Texas to look again at the Biden administration’s revisions to the DACA program, leaving the program in place for the time being despite indicating in its ruling that it finds the program to be unlawful.

Penn Today asked Sarah Paoletti to shed some light on the ruling. Paoletti, who founded the University of Pennsylvania Carey Law School’s international human rights and immigration clinic, the Transnational Legal Clinic, discusses some background on the ruling and what it means for DACA beneficiaries and their family members.

How does the court decision affect people who are currently enrolled in the DACA program and other undocumented people?

For now, the situation for those currently enrolled in the DACA program is status quo. Current DACA recipients retain their DACA status, can apply for advance parole (a travel document issued by the U.S. Citizenship and Immigration Services that allows certain noncitizens inside the United States to depart and seek to reenter the country after temporary travel abroad), and are eligible to file for renewal of their DACA status.

For those with DACA, however, the status quo also means ongoing uncertainty and precarity of status. While the 5th circuit has held that DACA was an overreach of the president’s authorized exercise of prosecutorial discretion, it remanded the case to the district court for consideration of new rule put into place by the Biden administration in August of this year. The Texas district court had previously ruled that DACA failed to go through the ‘notice and comment’ process it deemed necessary, while also indicating that DACA was most likely illegal as a matter of substantive law.

We cannot predict how long it will take for the district court to rule, how that new ruling will impact current DACA recipients, and then what the 5th circuit and ultimately the Supreme Court might do.

For those who might be DACA eligible but are not current DACA recipients, including those with pending first-time applications for DACA, their situation also remains the same; the U.S. Citizenship and Immigration Services cannot process any new applications for DACA, and they remain unable to access the intended protections and benefits afforded under the DACA program.

Why is DACA back in court, didn’t the Supreme Court have a case about it just a couple of years ago?

In September 2017, then-Attorney General Jeff Sessions sought to terminate the DACA program. Court challenges were brought arguing that the Trump administration’s attempt to rescind DACA was ‘arbitrary and capricious’ and violated the Administrative Procedures Act. The case ultimately made it to the Supreme Court, and in the spring of 2020 the Court ruled 5-4 that indeed the rescission of DACA was ‘arbitrary and capricious.’

A federal district court in New York ordered the reinstatement of DACA in full, while separate litigation was filed in Texas challenging the legality of DACA, following on litigation undertaken when the Obama administration first announced the DACA program and the attempted, but never implemented, Deferred Action for Parental Accountability program. Federal District Judge Andrew Hanen ruled that DACA was illegal and that is the case that was just ruled upon on appeal by the U.S. Court of Appeals for the 5th circuit.

What is the outlook for DACA? What should people look out for next?

We have long known that DACA was intended as a temporary response to Congress’ failure to pass the DREAM Act, and in the years since DACA’s introduction Congress has failed to take action. The 5th circuit’s decision and response to the persistent challenges to the president’s long-established prosecutorial discretion authority have put the DACA program in grave jeopardy. Looking ahead, it is clear that Congress must act, and must act soon, to provide more permanent relief to current and prospective DACA recipients and their family members.

What is the most important thing for people to understand or know about this ruling?

The situation for current DACA recipients is status quo, though it is uncertain what will happen moving forward. It is now critical that Congress act to implement a more permanent solution for all of the intended DACA beneficiaries and their family members, individuals who are long-standing and valued members of their communities, academic institutions like Penn, and of the United States.

Fact Sheet on DACA: DACA UPDATE LITIGATION 10 2022.docx (

Further information on DACA and its history is available here: Immigration in a Biden Administration | Penn State Law | University Park, Pa. (