A Texas federal court district judge issued a decision on September 13, 2023, declaring that “DACA,” a program providing certain benefits to undocumented immigrants who arrived in the U.S. as children, is illegal. The ruling states that new applications will not be adjudicated by the United States Citizenship and Immigration Services (“USCIS”), however, those who already have DACA designation will be allowed to renew it.
“DACA” (Deferred Action for Childhood Arrivals) is an Obama-era program preventing those who had unlawfully entered the country as children from being placed in removal proceedings and deported. The applicant must meet several criteria to be eligible for the program and its benefits. Some key criteria being that they must have entered the country when they were younger than 16; must be younger than 30 at the time of application; must show current school enrollment or graduation; and have no criminal record, among other factors.
The lawsuit stems from several states claiming to have incurred financial harm by continuing to support healthcare, education, and other benefits given to those who entered the country illegally. While DACA is not an immigration status per se, it is a designation that allows a recipient to stay in the United States for two years at a time and, in certain circumstances, allows work authorization and public benefits. It does not provide a pathway to citizenship.
Supporters of DACA have emphasized how the policy helps children who had no choice about entering the U.S. illegally, and now as young adults have very little to no personal connection to their birth countries. Deporting those who arrived as children would not only remove them from communities they know as home, but it would also be sending them into unsafe situations in their birth countries.
This is not the first time Judge Andrew Hanen has ruled against DACA. He previously struck it down in a 5th Circuit decision in July 2021, criticizing it for subverting federal agency rulemaking procedures that would require it to go through public notice and comment periods. In response to this, the Biden administration formalized regulations for the program in a Final Rule enacted on October 31, 2022. However, Judge Hanen once again struck down the program in its Final Rule form, for failing to correct deficits of the original program. He stated that there were no significant changes from its original predecessor (the 2012 DACA Memorandum by the Obama Administration) that the Court states was “illegally enacted” and exceeded the power of the executive branch. Judge Hanen’s most prominent objection is that the program should not be enforced through executive or judicial branches, but through legislation with Congress. The decision states, “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. … Congress, for any number of reasons, has decided not to pass DACA-like legislation.”
Congress has repeatedly failed to pass legislation like the DREAM Act that would provide permanent protections to DACA recipients and a pathway to citizenship. The DACA program itself has been the source of litigation since its inception in 2012. Cases arguing for its legality and any expanded program have made it up to the Supreme Court twice – once in 2016, and then in 2020. In June 2020, the Supreme Court ruled in Department of Homeland Security v. Regents of the University of California that the Trump administration had improperly ended the DACA program in an “arbitrary and capricious manner” outside of normal procedure. The 5-4 decision allowed the program to continue, but the Court refused to opine on whether the program was legally valid and enforceable. It is expected that this new decision will be appealed and heard by the 5th U.S. Circuit Court of Appeals, and it may eventually make its way back in front of the Supreme Court given the program’s controversial history.
In the meantime, what does this mean for current and prospective DACA recipients? Shortly after Judge Hanen’s decision, USCIS issued an update about what to expect for new applications and renewals. Under the district court order, USCIS confirmed that current recipients will retain their DACA designation, and any associated work authorization already granted, until both expire at the end of their normal two-year period. The agency states that, “Current valid grants of DACA and related EADs [‘Employment Authorization Documents’] will continue to be recognized as valid under the Final Rule.” Once either expires, USCIS will be able to accept and process DACA renewal requests and associated work authorization extensions. USCIS also states that while they will “continue to accept initial DACA requests,” they cannot process them according to the recent order. A DACA renewal request submitted after someone’s most recent DACA grant is terminated (or more than 1 year after expiration), is considered to be an initial request. In the meantime, the DACA program continues to generate buzz ahead of the 2024 election. During the most recent GOP debate on September 27, 2023, Former Vice President Mike Pence was asked if he would work with Congress to preserve DACA protections. He did not respond directly, pivoting instead to topics involving border protection. But as the case moves through the appeals process and towards the Supreme Court, it is likely to remain at the forefront of conversations involving immigration reform, while the 578,680 current DACA recipients face an uncertain future.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the October 6, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
