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Explainer: U.S. District Court Judge Hanen Finds New DACA Rule Unlawful


On September 13, 2023, the U.S. District Court for the Southern District of Texas ruled against Deferred Action for Childhood Arrivals (DACA), holding that the program was unlawful. The ruling rests on grounds similar to an earlier decision in October 2022 from the U.S. Court of Appeals for the Fifth Circuit.

In determining that the Biden administration’s 2022 final rule on DACA was not materially different from the 2012 Department of Homeland Security (DHS) memorandum establishing DACA, U.S. District Court Judge Andrew Hanen held that the new DACA rule, which was intended to fortify DACA, was therefore unlawful. While the 2022 rulemaking process – formal “notice-and-comment” rulemaking – may have satisfied the procedural deficiencies of the 2012 memorandum, Hanen determined that substantively there were “no material differences between the two programs” and that the final rule “suffers from the same legal impediments” as the 2012 memorandum. Consistent with previous decisions, Judge Hanen continued to stay (pause) the injunction and order vacating DACA rules for current DACA recipients. Current DACA recipients can continue to work legally in the U.S., be protected from deportation, and renew their status, at least temporarily, as litigation over the DACA policy continues.

Whether there were material differences between the 2012 and 2022 DACA policies

Judge Hanen noted that the U.S. Court of Appeals for the Fifth Circuit sent the district court a “very specific, limited remand” to determine “whether there are material differences” between the 2022 DACA rule and the 2012 DACA memorandum. If not, the district court was to find that the Fifth Circuit’s previous holding striking down the 2012 DACA memorandum also applies to the 2022 DACA rule.

In examining the administrative record, Hanen determined the 2022 final rule on DACA was substantively the same as that set out in the 2012 DACA memorandum, finding that both were inconsistent with the Immigration and Nationality Act, the statutory scheme regulating immigration and naturalization. He noted that while the Biden administration put the 2022 final rule through formal notice-and-comment rule to satisfy the procedural concerns raised in the courts (presumably satisfying the requirements of the Administrative Procedure Act (APA)), the administration considered, but declined, to take “steps to avoid the substantive pitfalls that have been pointed out by the Fifth Circuit and other courts.” Given that, Hanen found that the substantive concerns he previously raised and the Fifth Circuit reiterated “still exist.” Hanen therefore found summary judgment in favor of Texas and the other plaintiff states challenging the 2022 DACA rule, holding that substance of the 2022 DACA rule was legally deficient[1] for the same reasons as the 2012 DACA memorandum.

Whether Texas and other plaintiff states had standing

While not expressly within the scope of the remand from the Fifth Circuit, Judge Hanen also revisited the issue of standing – whether Texas and other plaintiff states suffered any injury due to DACA and could appropriately challenge the policy in federal court. Noting that the defendant federal government and defendant intervenors re-raised the issue after remand, Judge Hanen reiterated that both he and the Fifth Circuit had already found standing in the case existed. While the Supreme Court recently found Texas and other states lacked standing to challenge another Biden administration immigration policy – immigration enforcement priorities – in United States v. Texas, language in that opinion distinguished state challenges of policies that provide for work authorization or other benefits, like DACA. Judge Hanen also noted that DHS acknowledged possible “indirect fiscal effects” arising from DACA, further supporting standing on the basis of potential increases in healthcare, education, and social services costs to states related to the policy.

Whether the unlawful portions of the rule could be severed from the rest of the rule

Finally, Judge Hanen considered and rejected a request from the defendants to sever unlawful sections of the 2022 DACA rule from the rest of the rule. In considering whether the work authorization provisions could be severed from the protections against deportation, Judge Hanen noted that work authorization was a central feature of DACA and could not be separated out from the rest of the policy. Further, Hanen also asserted that DHS has always possessed the ability to use prosecutorial discretion on a case-by-case basis to avoid deporting Dreamers and could do so without DACA or another formal a rule or policy (although the adoption of such a policy would presumably provide much less certainty to individual Dreamers and cover fewer of them). Judge Hanen noted that if the Court were to end DACA and its resulting benefits, DACA recipients would “be back where they were – in the country illegally, but not active targets of the DHS.”

What the Decision Means for DACA Recipients and Other Dreamers

Judge Hanen’s decision continues a temporary – yet precarious – respite to the approximately 580,000 current DACA recipients in the U.S. Even as Judge Hanen found that the 2022 final DACA rule is unlawful and that the Biden administration is unlikely to ultimately prevail on the merits of the case, he continued to stay the impact of that ruling for current DACA recipients. This means that current DACA recipients will retain protection from deportation and work authorization, as well as the ability to renew these protections, while the litigation continues – including a likely appeal to the Fifth Circuit and, later, the U.S. Supreme Court.

The decision to stay the injunction for current DACA recipients is consistent with previous rulings from Judge Hanen and the Fifth Circuit. In 2022, the Fifth Circuit emphasized the reliance interest that current DACA recipients possess in these protections, preserving the status quo until a final decision is issued in the matter.

That said, the decision does continue to negatively impact a large number of Dreamers in the present, still barring new applicants from having DACA petitions adjudicated. Dreamers currently without DACA will not benefit from the policy’s protections, including those who would have been eligible for protections but were too young to apply before processing of new applications were (mostly) stopped in 2017 and other who have submitted new applications that have never been processed. Today, most Dreamers graduating high school and entering college or the workforce do not have DACA. In addition, the ruling may also establish new limits to the use of advance parole for DACA recipients, which permits program recipients to travel overseas for urgent humanitarian reasons or where there is significant public benefit.

Given the likelihood that the Fifth Circuit will find the 2022 DACA rule to be unlawful (as it did the 2012 DACA memorandum) and a Supreme Court that has undergone changes in personnel since allowing the policy to survive in 2020,[2] current DACA recipients, as well as their families, communities, and employers, remain in limbo.

Potential Solutions

The Biden administration is limited in its ability to use executive power to preserve existing Dreamer protections under different rationale. Federal courts have been skeptical of various Biden administration actions related to immigration. Utilizing alternative administrative tools to protect Dreamers, including Deferred Enforced Departure (DED), parole, or other legal authority, would likely face legal challenges and skeptical federal courts. Given this history, and the adverse decisions from Judge Hanen and the Fifth Circuit regarding these protections under DACA, alternative policies attempted to provide similar protections to Dreamers will continue to face legal attacks and are unlikely to settle the issue.


However, as has long been the case, Congress can act to provide certainty for DACA recipients and other Dreamers and insulate their protections from ongoing court challenges. By passing legislation to provide permanent solutions for Dreamers, Congress can enshrine these needed protections into federal law.



Timeline (2021-present)

July 16, 2021: Judge Hanen of the U.S. District Court for the Southern District of Texas ruled that the 2012 iteration of DACA was unlawful. But the court stayed the decision to allow people with DACA to continue to renew their protections. The court permitted USCIS to accept new applications from first-time, would-be DACA recipients, but barred the agency from acting on them.

September 2021: The Biden Administration appealed the district court’s decision on DACA to the U.S. Court of Appeals for the Fifth Circuit.

July 6, 2022: The Fifth Circuit heard oral arguments in this litigation over DACA.

August 30, 2022: The Biden Administration published a final rule on DACA after engaging in formal rulemaking under the APA’s notice-and-comment process. The purpose of the rulemaking was to fortify DACA by addressing procedural concerns raised in the litigation about the creation of the policy.

October 5, 2022: The Fifth Circuit affirmed the district court’s decision, finding the 2012 iteration of DACA was unlawful. It declined to rule on the legality of the newly-promulgated 2022 DACA rule, remanding the issue to the district court to determine whether the new rule was materially different from the 2012 DACA policy.

October 31, 2022: Planned implementation date for the 2022 final DACA rule. The rule was enjoined by the district court during the pendency of this litigation and never has taken effect.

June 1, 2023: Judge Hanen heard oral arguments on the legality of the 2022 DACA rule.

September 13, 2023: Judge Hanen determined that there “are no material differences” between the 2022 final rule and 2012 DACA memorandum and held that the 2022 DACA rule is unlawful. As before, Judge Hanen stayed the impact of his ruling on current DACA recipients during potential appeals.


* * *

[1] Hanen raised and declined to rule on the plaintiff states’ argument that DACA was unconstitutional, following the “general jurisprudential rule” that courts avoid ruling on constitutional violations where alternative grounds for a ruling exist (here, that DACA violated federal statutes).

[2] Notably, in allowing DACA to survive in Department of Homeland Security v. Regents of the University of California, the Supreme Court explicitly declined to rule on DACA’s legality, instead focusing on the process used by the Trump administration to attempt to end it.


The National Immigration Forum would like to thank Javeria Ijaz, policy intern, for her extensive contributions to this explainer.

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