On July 16, U.S. District Judge Andrew Hanen ruled that Deferred Action for Childhood Arrivals (DACA) ― a policy that allows undocumented immigrants who were brought into the U.S. as children to stay in the country ― is “illegal.”
Hanen determined that the plaintiffs – a group of states led by Texas – had standing to challenge the longstanding deferred action policy and that the U.S. Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) in creating and implementing it. Hanen then held that DACA was inconsistent with federal law rejected the argument that it was justified under DHS’s inherent prosecutorial discretion.
In granting summary judgment to the plaintiffs, Hanen vacated the 2012 memo creating DACA and the DACA program itself. However, he temporarily stayed the portion of his decision that would halt DACA protections for current recipients, citing the significant reliance existing DACA recipients have in the program. The temporary stay is to remain in place as the Biden administration engages in “notice and comment” rulemaking under the APA and correct the legal infirmities cited by Hanen.
The decision highlighted that it does not affect the status of current DACA recipients and does not require DHS or the U.S. Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient or applicant.
The ruling notes that while DHS may continue to accept new DACA applications, it is enjoined from approving them. The decision permits DHS to continue to grant renewals for those with existing DACA protections.
What does the ruling mean for Dreamers?
Dreamers currently without DACA, including the 80,000-plus with pending petitions before USCIS, will not receive DACA protections and will remain subject to removal. Judge Hanen’s order does permit them to submit new petitions seeking DACA protections, but bars DHS from acting on those new petitions.
In contrast, at least for the time being, current DACA recipients maintain work authorization and their existing protections against deportation. Also, as noted above, they retain the ability to renew their DACA protections.
While the temporary stay blunts the decision’s impact on current DACA recipients, their prospects are much more uncertain the medium- to long-term. Absent a permanent legislation solution by Congress, current DACA recipients eventually stand to lose DACA protections.
Will the decision be appealed?
Hanen’s order is expected to be appealed to the U.S. Court of Appeals for the Fifth Circuit, and, eventually, the U.S. Supreme Court.
However, given the conservative bent of the Fifth Circuit, it seems unlikely that the appellate court will reverse the decision and restore DACA. In 2015, the Fifth Circuit upheld a previous Hanen ruling halting another deferred action program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
Similarly, prospects of the Supreme Court restoring DACA seem dim. While the U.S. Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California in 2020, the majority’s opinion was based on the improper procedure used by the Trump administration in its attempted 2017 DACA rescission. That decision did not reach the question of whether DACA itself was legal.
Previously, in 2016, the Supreme Court split 4-4 in upholding the previous Fifth Circuit decision halting the similar DAPA policy. With that 4-4 court now a 6-3 conservative majority, DACA faces an uphill battle for survival.
What happens next?
Judge Hanen’s temporary stay of his order of permanent injunction vacating DACA protections for current recipients is conditioned on the federal government taking “appropriate steps to remedy the shortfalls in DACA within a reasonable time,” including placing the policy in notice-and-comment rulemaking under the APA.
Previously in March, in an effort “to preserve and fortify” DACA, DHS Secretary Alejandro Mayorkas announced that the agency would be undertaking formal notice-and-comment rulemaking on DACA. In a statement expressing disappointment over the ruling, President Biden confirmed that DHS would be issuing a proposed rule concerning DACA in the near future.
Given the sweeping nature of Hanen’s opinion, which found DACA to be completely at odds with the Immigration and Nationality Act and placed major limitations on the use of prosecutorial discretion, it is hard to see how anything resembling the current policy could emerge intact from the rulemaking process and subsequent litigation.
However, as Biden noted in his statement, Congress can act to ensure that Dreamers are protected, making DACA no longer necessary. Earlier this year, Sens. Dick Durbin (D-Illinois) and Lindsey Graham (R-South Carolina) reintroduced the Dream Act, which would provide DACA recipients permanent legal status, allowing them to continue living and working in the U.S. without fear of deportation, and would provide Dreamers the opportunity to earn eventual citizenship. And in March, Democrats and a handful of Republicans in the House of Representatives voted to pass the Dream and Promise Act, which would provide a pathway to earned citizenship for Dreamers as well as people with Temporary Protected Status.
Action on these bills, or other similar legislation, can end the ongoing uncertainty over DACA, providing Dreamers with the permanent legal status and protections they deserve.
Author: Laurence Benenson