Biden admin. files appeal in states' challenge to DACA

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Activists and DACA recipients march up Broadway during the start of their 'Walk to Stay Home,' a five-day 250-mile walk from New York to Washington D.C., to demand that Congress pass a Clean Dream Act, in Manhattan, New York, U.S., February 15, 2018. REUTERS/Shannon Stapleton

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  • Appeal targets judge's ruling blocking new DACA applications
  • Will be heard by conservative 5th Circuit
  • Agreeing with states, judge said DACA was end-run around Congress

(Reuters) - The Biden administration on Friday launched its appeal of a Texas federal judge's recent ruling that blocked new applications to an Obama-era program protecting immigrants who were brought to the U.S. as children from deportation.

The U.S. Department of Justice filed a notice of appeal in Brownsville, Texas, federal court nearly two months after U.S. District Judge Andrew Hanen said the Deferred Action for Childhood Arrivals (DACA) program was an improper end-run around the legislative process.

Hanen, however, said that because nearly 650,000 people are currently enrolled in the program, his ruling would be temporarily stayed for their cases. The decision came in a lawsuit by Texas and several other Republican-led states.

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The case now goes to the 5th U.S. Circuit Court of Appeals, which is considered one of the most conservative appellate panels in the country. The court in 2015 affirmed a separate ruling by Hanen striking down a deferred action program for individuals with children who are U.S. citizens.

The office of Texas Attorney General Ken Paxton, which is spearheading the 2018 lawsuit, did not immediately respond to a request for comment on the appeal, which was expected. Nor did the U.S. Department of Justice.

DACA, which was created in 2012, allows certain undocumented immigrants to receive renewable two-year deferrals from deportation and permits them to work legally in the United States.

To be eligible, an immigrant must have entered the country before his or her 16th birthday and prior to June 2007, be a high school student or graduate, and not have been convicted of a felony or three misdemeanors.

The Trump administration in 2017 said it was ending the program, claiming former President Barack Obama exceeded his powers when he created DACA through executive action. Texas and the other Republican-led states have made similar claims in the lawsuit before Hanen.

But the Supreme Court in a 5-4 ruling last year said the administration had not followed the proper process for rescinding DACA under the Administrative Procedure Act.

Hanen in July found the program violated the APA by creating substantive new procedures without going through formal notice-and-comment rulemaking. DACA's eligibility requirements also clashed with federal immigration laws, the judge said.

He said the government could continue to receive new applications to the program, as ordered by a federal judge in a separate case, but that it could not approve them.

The case is State of Texas et al v. United States of America, U.S. District Court for the Southern District of Texas, No. 1:18-cv-00068.

For the states: Todd Disher of the Texas Attorney General's office

For the USA: Jeffrey Robins and James Walker of the U.S. Department of Justice

For the intervenor defendants: Nina Perales of the Mexican American Legal Defense & Education Fund; Doug Hallward-Driemeier of Ropes & Gray.

Read more:

U.S. judge rules DACA program illegal, suspends new applications

U.S. judge hears arguments targeting deportation protections for 'Dreamer' immigrants

Judge in states' challenge to DACA wants more briefing on impact of SCOTUS ruling

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at