Immigration Impasse Continues with Another Federal Judge Ruling Against DACA
Texas District Court Judge Andrew Hanan recently made another ruling against the long-debated immigration policy DACA.
The first Obama Administration created DACA, the Deferred Action for Childhood Arrivals program. It was a response to the unique problem faced by "Dreamers" — children brought to the U.S. among undocumented families. These children had not actively chosen to enter into the country without legal papers but had nonetheless suffered the consequences of growing up in the U.S. without valid immigration status. As a result, Dreamers not only were unable to participate fully in American society and receive the same benefits as documented residents, but they also constantly faced the threat of deportation.
It is easy to confuse Dreamers with the DREAM Act, which you may have heard of in the same context. This article is about DACA and DAPA, which are different from the DREAM Act. The DREAM Act would allow undocumented immigrants who had entered the U.S. before their 16th birthday to apply for conditional permanent resident status if they met certain requirements, including continuous residency for five years within the country. But the DREAM Act has never been enacted into law.
The DREAM Act remains, well, a dream. By contrast, DACA (and its later companion, DAPA) has been enacted into law. The lawsuits focus primarily on DACA, so let's break that down.
Deconstructing DACA
Administered by U.S. Citizenship and Immigration Services (USCIS), DACA is a "discretionary program," meaning eligibility is not automatic or guaranteed, but decided on a case-by-case basis by the government agency. To meet the basic criteria, you must have been brought into the U.S. before age 16 and have continuously resided there since June 15, 2007. There were also educational requirements for DACA. For example, applicants had to have completed high school or earned an equivalent credential, diploma, or GED (with exceptions being made for applicants currently in school or honorably discharged veterans).
DACA applicants had to put together a packet of documentation to verify their eligibility, including identity documents, birth certificates, school records, and financial statements. DACA applicants later underwent background checks and evaluations to make sure that they did not pose a national security risk and weren't a threat to public safety.
If approved, DACA status came with very significant benefits. For one, it provided temporary relief from deportation or removal by granting a period of "deferred action" (hence the name). DACA recipients were also eligible to receive a social security number, driver's license, work authorization (EADs or work permits), and other benefits such as in-state tuition at public colleges. The program also granted "advanced parole," which allowed recipients to travel outside the U.S. and return without losing DACA status, for specific purposes such as school- or work-related reasons.
DACA protection typically lasted two years, but was renewable; as long as recipients met the renewal criteria, they could apply for renewals to keep up their status. However, DACA was still considered a temporary program and did not provide a pathway to permanent residency or citizenship.
Although the new policy was aimed at helping innocent children, it was still a policy about immigration, one of the most divisive political issues in the country. Unsurprisingly, it did not get unanimous support. Many were not happy about the new law. A group of Immigration and Customs Enforcement (ICE) officers and agents even tried bringing a lawsuit during DACA's first run, but the case was dismissed for lack of standing, so the courts never really answered the key questions challenging the policies.
DACA the Sequel: Barack Is Back
While DACA wasn't without controversy even in its inception, the debate really got heated when the second Obama Administration doubled down on their relatively liberal stance toward immigration. In 2014, President Obama announced that the DACA program would be modified to make it more immigrant-friendly by removing the age limit for eligibility, setting a new cutoff date (2010 instead of 2007) for the continuous residency requirement, and making the program's duration three years instead of two.
At the same time, Obama also announced an even more controversial program called DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). This program would essentially provide similar protections and benefits to the undocumented parents of citizens and green card holders. The American Dream suddenly seemed so much more attainable for the Dreamers.
Except that half the country wasn't having it.
The DAPA Deadlock
Twenty-six different states soon took their gripe to federal court. Texas took the lead in the litigation, under the leadership of Governor Greg Abbott. The Lone Star State wasn't alone; it was joined by countless co-plaintiffs from Republican-leaning states such as Georgia, Kansas, Maine, North Carolina, and Wisconsin, along with top-level officials from federal agencies such as the USCIS, ICE, Department of Homeland Security (DHS), and Customs and Border Protection (CPB).
In 2014, these plaintiffs brought suit against the U.S. federal government, arguing that President Obama had acted out of the scope of the power given to him by the Constitution (specifically, the Take Care Clause), and also that DAPA was not correctly passed as a law because it didn't go through the requirements laid out by the Administrative Procedure Act (APA). The plaintiffs asked a federal district court in Texas to grant a nation-wide injunction that would effectively undo DAPA across the country.
The court agreed and rolled back the new immigration policy. After lots of back and fourth and appeals, the case made its way up to the U.S. Supreme Court. But SCOTUS deadlocked, which in effect, left the lower courts' ruling and national injunction of DAPA in place.
DACA on the Docket
When Trump took office in 2016, his administration famously took a hard-line stance against unlawful immigration. They announced the decision to end the 2012 version of DACA (DACA 2012), which was still on the books at the time. Of course, they were met with lots of legal challenges, and several courts issued temporary injunctions that would block DACA's termination until it mades it way through the court system. Finally, in 2020, SCOTUS held the means Trump used to end DACA was unlawful — letting the policy survive. But by ruling on the process itself, the Court explicitly declined to rule on DACA's legality.
DACA 2012 was called into question again after Trump left office. It began with a 2021 ruling by Judge Hanen that deemed the policy unlawful. The effect was to bar new applications, but allowed renewals. The Biden Administration appealed while simultaneously modifying DACA 2012 and publishing a final version (DACA 2022) to address procedural concerns raised by the legal challenges. Last fall, the Fifth Circuit affirmed DACA 2020's unlawfulness and remanded the new rule's legality to the district court, and planned implementation of the new rule was halted.
On September 13, Judge Hanen ruled the 2022 DACA rule unlawful, making exceptions for current recipients pending potential appeals. He first upheld Texas and other plaintiff states' standing to challenge DACA. He said that DACA 2022 was aimed at strengthening the program and had no material differences from DACA 2012, making the newer version unlawful. While DACA 2022 addressed procedural concerns through formal rulemaking, it did not resolve substantive issues, rendering it legally deficient. Judge Hanen also rejected the request to sever unlawful sections of the 2022 DACA rule from the rest, emphasizing the central role of work authorization in DACA.
What Next?
What does this mean for current DACA recipients? For now, they can continue to work legally and remain protected from deportation while litigation over DACA continues. Judge Hanen's decision keeps current DACA recipients in a temporary but uncertain position. However, new DACA applicants are still barred from having their petitions adjudicated, impacting a significant number of Dreamers who have not been able to benefit from the policy's protections. The ruling may also establish new limitations on the use of advance parole for DACA recipients. What's certain is that the legal challenges on both sides to DACA are far from over, and we can expect to see it on SCOTUS's docket again in the future.
Related Resources
- DACA Hanging By a Thread After Fifth Circuit Ruling (FindLaw's Courtside)
- What is DACA: Deferred Action for Childhood Arrivals? (FindLaw's Learn About the Law)
- Federal Law Making It a Crime to Encourage Undocumented Aliens to Stay in U.S. Unconstitutional (FindLaw's Federal Courts)
- Elon Musk Launches Countersuit Against DOJ for SpaceX Immigration Discrimination Claim (FindLaw's Federal Courts)