US appeals court sends child immigrants case back to lower court to consider new rules

A federal appeals court ruled on Wednesday that a programme that has protected hundreds of thousands of young immigrants from deportation was unlawful, but said current enrollees could renew their status and sent the case back to a lower court to consider a new Biden administration regulation.

A panel of three judges from the 5th US Circuit Court of Appeals affirmed a lower court's ruling against the programme, called Deferred Action for Childhood Arrivals (Daca), but remanded the case in light of a new regulation issued in August.

The decision is a mixed one for US President Joe Biden, a Democrat, who said he wants a permanent pathway to citizenship for Daca recipients – often known as "Dreamers."

The court allowed for the current 594,000 Daca enrollees to maintain their status, but continues to block new applications.

In remanding the case, the appeals court said it did not have enough information to rule on the new regulation, which is set to take effect on Oct 31, but that the case should be resolved as quickly as possible.

The 46-page opinion signalled the judges were sceptical of Daca's legality.

"The legal questions that Daca presents are serious, both to the parties and to the public," they wrote. "In our view, the defendants have not shown that there is a likelihood that they will succeed on the merits."

Former president Barack Obama, a Democrat, whom Biden served under as vice-president, created Daca in 2012 after efforts by US Congress to grant citizenship to immigrants brought to the country as children failed.

Texas and a coalition of states with Republican attorneys general in 2018 sued to end Daca, arguing it was illegally implemented. In July 2021, US district court judge Andrew Hanen in Texas sided with states. 

Hanen's decision blocked new Daca applications from being processed, but pre-existing Daca recipients were allowed to continue receiving benefits and apply for renewal.

The Biden administration appealed the decision, sending the case to the 5th Circuit.

People with Daca status can obtain work permits, a Social Security number and in some states, receive driver's licences and financial aid for education. 

Daca recipients have faced years of uncertainty and legal wrangling. Biden's predecessor, former president Donald Trump, tried to end the programme but was stymied by the Supreme Court.

The opinion issued on Wednesday was authored by an appointee of former president George W Bush, a Republican, who was joined by two Trump appointees.

Biden came into office promising to work toward a long-term solution for the "Dreamers," but Republicans and Democrats have found little common ground on immigration in recent years, making a legislative fix before the Nov 8 midterm elections unlikely.