A federal judge in Texas last week again ruled that the Deferred Action for Childhood Arrivals (DACA) program, established in 2012, is unlawful. The ruling is rooted in an issue of constitutional law. The core question is whether the President had the authority to establish the program, or whether that authority resides solely with Congress, requiring the program to be implemented through the legislative process rather than by Executive Order. The ruling last week effectively reaffirmed a prior ruling from the same judge in 2021 that the President exceeded his authority, and that the DACA program is therefore illegitimate.
U.S. District Judge Andrew Hanen, of the United States District Court for the Southern District of Texas, found that the final rule related to DACA published by the Biden administration in the Federal Register in Oct. 2022 was unlawful.
“While sympathetic to the predicament of DACA recipients and their families, this court has expressed its concerns about the legality of the program for some time,” Hanen wrote. “The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation.”
In July 2021, Hanen ruled against the original DACA program, implemented by former President Barack Obama in 2012. Following that 2021 finding, the Biden administration issued a final rule in an effort to “preserve and fortify” DACA.
Soon after, the U.S. Court of Appeals for the Fifth Circuit upheld Hanen’s finding but sent the case back to him to review the final rule, which prompted the decision last week.
“While the final rule may have used somewhat different wording in a few places, the substantive portions are materially the same as the 2012 DACA Memorandum,” Hanen wrote in the decision. “There are no material differences between the two programs. As such, the final rule suffers from the same legal impediments.”
Initial applications and advanced parole
It is important to note that Hanen’s ruling does not end DACA in its entirety. Instead, the decision extends the current injunction in place against DACA and continues to bar initial/new applications for those who have never had DACA. Therefore, applications from those already in the program will continue to be accepted and adjudicated by United States Citizenship and Immigration Services (USCIS).
The Biden administration has not been able to process initial applications for DACA since Hanen issued his first injunction in July 2021.
Additionally, the decision from Hanen does not specifically address whether advance parole is, or is not, available at this time for travel outside the United States. Garfinkel Immigration Law Firm advises DACA recipients to reconsider travel outside of the United States on advanced parole until the administration issues additional guidance.
The attorneys at Garfinkel Immigration expect that the Biden administration will likely appeal Hanen’s decision and that the case could end up being heard by the Supreme Court once again. The Firm continues to monitor the situation closely and will alert clients as more information becomes available.
Criticism of ruling and calls on Congress for legislation
Department of Homeland Security Secretary Alejandro Mayorkas swiftly released a statement criticizing the decision from Hanen.
“I am deeply disappointed by the ruling and uniquely qualified to say that DHS believes DACA is lawful and Constitutional,” Mayorkas said. “This ruling does undermine the security and stability of more than half a million Dreamers who have contributed to our communities. The United States is the only home they have ever known. Congress has failed to act, and now Dreamers face an uncertain future, waiting to receive the permanent protection they deserve.”
Immigration advocates, including the American Immigration Lawyers Association (AILA) once again called on Congress to pass legislation that protects DACA recipients, known as “Dreamers,” following Hanen’s ruling.
“This decision – and the continuing litigation against DACA – makes one thing clear: Congress absolutely has to act now and pass legislation that provides lasting, permanent legal status and a path to citizenship for Dreamers and others who have lived in the United States and call this country home,” AILA Executive Director Benjamin Johnson said in a statement. “This uncertainty can be resolved once and for all if Congress steps up and does what the vast majority of American voters want: protect Dreamers permanently and give them a path to citizenship. Congress needs to get it done.”