Judge declares Biden version of DACA illegal

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A federal judge in Texas on Wednesday again ruled that the Deferred Action for Childhood Arrivals program is illegal, but kept it intact for now for hundreds of thousands of undocumented immigrants who arrived in the U.S. as children.

After the Biden administration moved last year to finalize a rule to codify the Obama-era DACA policy into a federal regulation, a group of Republican-led states challenged the effort and asked Texas-based U.S. District Judge Andrew Hanen to shut down the program in its entirety over two years.

As expected, Hanen on Wednesday ruled the Biden administration’s effort unlawful, but refrained from terminating the program and maintained the status quo for current DACA recipients.

For more than a decade, the Deferred Action for Childhood Arrivals policy has allowed more than 580,000 undocumented immigrants who arrived in the U.S. as children to receive work permits and deportation relief. Hanen’s latest decision pushes the program one step closer to the Supreme Court, where advocates and legal experts warn that the conservative bench seems likely to rule the program illegal.

Department of Homeland Security Secretary Alejandro Mayorkas said that he was “deeply disappointed” by Wednesday’s ruling, pointing to both his role in implementing the final rule and as the director of U.S. Citizenship and Immigration Services in 2012, when he led the development of DACA.

“The ruling preserves the stay, which means current DACA recipients will not lose their protection from removal. But 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,” Mayorkas said in a statement.

White House press secretary Karine Jean-Pierre similarly criticized the ruling in a late-night statement, pointing to President Joe Biden’s efforts to protect and defend the program against legal action. She also reupped the White House's calls for Congress to provide permanent protection for so-called Dreamers.

Hanen, who has ruled repeatedly against earlier versions of DACA, was blunt in his conclusion that the Department of Homeland Security hadn’t really tweaked the program at all despite the extensive notice-and-comment process the government carried out.

“DHS did nothing to change or resolve the substantive problems found by this Court or the Fifth Circuit,” Hanen wrote in a 40-page opinion.

Hanen, an appointee of President George W. Bush, said bluntly that the Biden administration’s DACA rule illegally usurps Congress’ power just as the initial plan put forward in 2012 by President Barack Obama did.

“DHS views the immigration system instituted by Congress as faulty, so it is instituting its own solution, regardless of the dictates of Congress,” the judge wrote.

The Biden administration suggested that if Hanen was concerned about the work permits issued to most DACA recipients, he could simply nix that part of the program, but he turned down that proposal.

However, the judge seemed concerned about perceptions that his ruling could trigger deportations of DACA recipients. He stressed in his new opinion and a related order that he is not ordering the detention or removal of anyone and that those decisions remain in the hands of DHS officials.

The initial DACA program established by Obama in 2012 faced no serious legal challenge at that time, but Hanen blocked an expansion of the program in 2015, acting on a challenge from Republican-led states. The Supreme Court deadlocked on the issue in 2016, effectively blocking the expansion but leaving the initial program intact.

President Donald Trump sought to revoke the DACA program, but it remained in place during legal challenges. In 2020, the Supreme Court issued a surprise, 5-4 ruling declaring that the effort by Trump officials to dismantle the program was legally flawed.

Following that decision, red states targeted the initial DACA program, prompting Hanen to rule that scheme illegal. Throughout, the judge allowed existing DACA recipients to renew two-year work permits and deportation protections. However, since 2021, the program has been closed to new applicants.

The series of legal defeats led the Biden administration to seek to put the program on firmer ground by proposing formal regulations to govern the program in 2021 and by taking public comment on the rules — addressing a complaint from some critics that the earlier variations dodged standard federal-government policymaking processes.

Only Congress can grant DACA recipients permanent residency, and for years, immigration advocates have called on lawmakers to take action. The advocacy group FWD.us on Wednesday blasted Hanen’s decision as a “predictable” but “devastating blow.”

“We will continue to fight for the president to provide additional protections and for Congress to enact the legislative solution that all Dreamers deserve,” the group said, referring to young people who were brought into the U.S. and have remained without legal status. “In the meantime, it’s important current DACA recipients know that DACA renewals and programs like Advance Parole remain in place and we strongly encourage everyone who is eligible to utilize these resources.”

Several Democratic members of Congress also addressed the decision with statements.

Rep. Chuy García (D-Ill.) said DACA recipients “can't keep living in legal limbo.” Sen. Bob Menendez (D-N.J.) condemned the ruling as “outrageous” and “utterly wrong,” and Sen. Dick Durbin (D-Ill.), who reintroduced the Dream Act earlier this year with Republican Sen. Lindsey Graham (R-S.C.), said Congress has “failed to finish the job.”

“Dreamers are protected from deportation for now, but due to lawsuits by extreme MAGA Republicans, their fates continue to hang in the balance and an untold number of Dreamers have been unable to enroll in the program for years," Durbin said. “It’s time for Congress to step up and meet our responsibility to Dreamers once and for all. I hope we can meet our obligation as lawmakers to solve this problem and pass the Dream Act, not just for the hundreds of thousands of Dreamers out there, but for the future of our country.”

The Biden administration is expected to appeal Wednesday’s decision, though the review of Hanen’s ruling will go to the 5th U.S. Circuit Court of Appeals, which already declared the initial DACA program unlawful last year.