Federal Judge Rules DACA Unlawful

By Terrance Turner

July 16, 2021

A federal judge in Texas has ruled the DACA program unlawful. Judge Andrew S. Hanen, of the United States District Court in Houston, ruled that President Barack Obama exceeded his authority when he created the program (Deferred Action for Childhood Arrivals) by executive order in 2012. But the judge chose not to immediately end the program, so the hundreds of thousands of immigrants it shields remain protected — for now.

In his decision, Judge Hanen addressed the Department of Homeland Security (DHS), which instituted the policy. Hanen ruled that the DHS violated the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations.  “DHS violated the APA with the creation of DACA and its continued application,” the judge wrote. He partially granted a judgement to Texas and several other states that had sued the United States government over DACA. But he stopped short of completely dismantling the program.

While Hanen vacated the DACA memorandum and the program it created, he added: “Nevertheless, these rulings do not resolve the issue of the hundreds of thousands of DACA recipients and others who have relied on this program for over a decade. That reliance has not diminished and may, in fact, have increased over time. Therefore, the order of immediate vacatur as it applies to current DACA recipients (but not the order of remand) is temporarily stayed,” Hanen wrote. He added: “DHS may continue to accept new DACA applications and renewal DACA applications,” but cannot approve them.

Simply put: immigrants already protected by DACA will remain so; they cannot be deported. Those who have already applied for the program will have their applications accepted by DHS. But while the Department can accept those applications, it cannot approve them.

The Deferred Action for Childhood Arrivals (DACA) program was created in 2012 under then-President Barack Obama. Under the program, immigrants brought to the U.S. as children could stay in the States temporarily. They could apply and file for a two-year “forbearance” that would shield them from deportation. They have to be within 15 and 30 years of age, with no felony convictions. They must also pass a background check. According to NPR, DACA recipients must also be currently in school, a high school graduate, or honorably discharged from the military. The fee to renew and apply is $495.

Obama was moved to create the program after activists staged sit-ins in congressional offices and protested outside the White House. DACA was launched after the DREAM Act, which had similar protections, failed to pass Congress. (It was blocked in the Senate by Majority Leader Mitch McConnell and Texas Senator John Cornyn.)

According to ImmigrationHelp.org, the bill would have made Dreamers eligible for a “conditional residency” status that would let them live and work in the U.S. for six years. After six years, they could get lawful permanent resident status, better known as a “green card.” Despite support from both Democrats and Republicans at the time, that bill never became law because it couldn’t get enough support in the Senate.

In lieu of Congress passing the legislation, Obama issued an executive order that directed the DHS to implement DACA. Since then, some 826,000 immigrants have received legal protection and work permits under the program. (NAACP’s website says that while over 80% of DACA recipients are Mexican, 36,000 Africans are also eligible for the program.)

After Obama left office, his successor worked to end the program. But last June, the Supreme Court ruled that the Trump administration’s 2017 attempt to end the program was “arbitrary and capricious”. Then, in December, a federal judge ordered the Trump administration to begin accepting new applications for DACA. This new ruling stops those applications from being fully processed. (CNN reported on Wednesday that roughly 13,000 renewal cases have remained pending for longer than four months, according to correspondence from the U.S. Citizenship and Immigration Services.)Those applications are now in limbo.

But the fight is not over. According to NPR, supporters of DACA will appeal this decision in the Fifth Circuit Court. That leaves the fate of the program up to the Supreme Court (again) or to Congress. President Joe Biden has pledged to protect DACA or place something similar in its place.On June 15 (DACA’s ninth anniversary), he stated: “I will continue to work towards passage of legislation protecting Dreamers and creating a path to citizenship for undocumented immigrants.”

Vice President Kamala Harris agreed. On June 15 (the ninth anniversary of DACA), Harris noted the uncertainty that Dreamers feel and called for a pathway to citizenship. “Even with DACA in place, we know that Dreamers live in a constant state of fear about their status and about their future,” Harris said. “It is critically important that we provide a pathway to citizenship to give people a sense of certainty and a sense of security.”

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