On July 6, 2022, attorneys with MALDEF, the State of New Jersey and the U.S. Department of Justice will present oral argument before the U.S. Court of Appeals for the Fifth Circuit located in New Orleans. The hearing involves a Texas-led challenge to Deferred Action for Childhood Arrivals (DACA).

MALDEF represents DACA recipients who intervened in the case and are appealing a 2021 ruling by U.S. District Court Judge Andrew S. Hanen. That ruling was made without a full trial and based on evidence submitted up to that point in the case that Judge Hanen deemed undisputed. In his ruling, the judge concluded that Texas had standing to challenge DACA, that the 2012 DACA memo exceeded the executive branch’s authority, and that it violated the Administrative Procedure Act (APA) and therefore was unlawful. He stayed his injunction vacating the DACA memo pending a later court order, allowing individuals with DACA to renew but blocking DHS from processing any first-time DACA applications.

What issues will the court of appeals consider at the July 6 hearing:

The three-judge appeals panel will consider three essential issues:

Standing: Did the State of Texas show that it has a concrete injury from DACA, and therefore has the ability to file suit in federal court?

Legality: Did the Obama administration have the legal authority to establish DACA as an exercise of executive discretion?

Procedural Implementation: Did the Obama administration follow the appropriate procedure necessary to create DACA?

When will the court issue a ruling:

The three-judge panel will not issue a ruling the day of the hearing. There is no time limit on when the court must issue a decision. It may take weeks or months before a decision is announced.

What are the are the possible outcomes:

The Fifth Circuit may:

  • rule that DACA is legal.
  • rule that Texas and other states have no injury from DACA, and therefore cannot bring suit in federal court.
  • rule that Judge Hanen’s decision was premature, and order him to conduct a full trial before deciding the legality of DACA.
  • rule that Judge Hanen’s decision stands, and affirm DACA is unlawful.

What happens after the Fifth Circuit Rules?


Any ruling is likely to be appealed to the U.S. Supreme Court. It’s important to note that even if the Fifth Circuit rules DACA is unlawful, it won’t necessarily order an immediate end to DACA.

Moreover, any attempt to end DACA abruptly would be disruptive to DACA recipients as well as to their families, employers and communities. The U.S. Supreme Court in 2020 recognized that DACA recipients have strong reliance interests in DACA and therefore it is unlikely that a court will order DACA to end suddenly.

Will the Biden administration’s announcement of a new regulation have any effect on this case?

We don’t know when the regulation will be announced or what it may contain However, it is unlikely to resolve all the issues currently before the courts.

MALDEF will review it carefully once it is public. If the new regulation is announced before the Fifth Circuit issues a decision, MALDEF, and the other attorneys in the case, will assess its impact and ask the court to consider it, if appropriate.

Additional information:

Timeline of Texas v. United States HERE

Media briefing on the upcoming hearing before the Fifth Circuit HERE

U.S. District Judge Andrew Hanen’s ruling HERE