Last July a federal judge in Texas ruled that DACA (Deferred Action for Childhood Arrivals) was “illegally implemented” by the Obama administration. The judge ruled that the program was not allowed to enroll any more people; however, he also said the people already enrolled could continue to benefit from the program and renew their enrollment while the issue was making its way through the courts.

Yesterday the the 5th U.S. Circuit Court of Appeals in New Orleans heard an appeal of last year’s decision. Politico reports that the panel assigned to hear the case seemed skeptical of DACA’s legality.

A panel of federal judges in New Orleans on Wednesday appeared unconvinced by the Justice Department’s arguments defending the legality of the Deferred Action for Childhood Arrivals program, with the fate of nearly 600,000 so-called Dreamers hanging in the balance…

The panel assigned to the case, Judges Priscilla Richman, James Ho and Kurt Engelhardt, are a relatively conservative set of jurists on an appeals court widely considered to be the most conservative such bench in the country.

Ho, an appointee of former President Donald Trump, vigorously challenged Boynton during his argument, questioning why the 2015 case, which was central to his argument, wasn’t mentioned in the Justice Department’s written filings. “I’m looking at your brief, and you don’t really talk about that case,” Ho said. “I’m just surprised that your lead case isn’t even in your brief.”

Boynton also tried to persuade the judges that if they’re inclined to strike down the program, returning the issue to the Department of Homeland Security for them to revise the policy while keeping it in place would be an “appropriate remedy” in this case.

DACA supporters are arguing among other things that there’s no evidence people currently here would leave the country if DACA were to end. Judge Ho pointed out that the supporters’ own documents contradicted that.

…they claimed that Texas hasn’t shown DACA recipients would leave the state if the program were struck down. That point was met with skepticism by Judge James Ho, who noted that in a survey included with New Jersey’s legal arguments, more than 20% of DACA recipients said they were likely to leave if the program were abolished.

Boynton argued that the respondents’ answers were merely speculative and supporters of the program, in briefs, have questioned the methodology of the survey. But Ho again questioned whether the responses should be dismissed.

“This is a question about, literally, your entire life,” Ho told Boynton. “This is a pretty profound question to get wrong.”

A decision from the panel is expected in the next few months. Whatever they decide, everyone expects the result will be appealed to the full 5th Circuit and after that to the Supreme Court. In neither case do DACA supporters seem to have a lot of reason to hope for a reversal of the decision the Texas judge reached last year, i.e. that the entire program was illegally implemented. So it may take a bit more time but it’s likely that DACA is going to be shut down in the near future.

Of course Congress could always take action to set some similar program in place and the courts presumably wouldn’t have a problem with that. But the chances of that happening now are almost nonexistent and they probably drop significantly in November.

Personally, while I think the DACA was an abuse of the executive branch’s authority, I also think it makes no sense to deport people who came here as children and who have essentially been raised in America. This seems like an area where some sort of reasonable compromise should be possible, though that would be a lot easier politically if we weren’t in the midst of another major influx of migrants at the border who continue to game the asylum system while the Biden administration does nothing but watch.

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