Washington – A federal judge on Wednesday again declared the Deferred Action for Childhood Arrivals (DACA) immigration programme unlawful, although he stopped short of ordering officials to end deportation protections and work permits for 580,000 immigrant “Dreamers”.
At the request of Republican-led states, Judge Andrew Hanen of the US District Court for the Southern District of Texas ruled that the Biden administration’s attempt to codify the DACA policy into a federal regulation was unlawful. Hanen, who was appointed to the bench by former Republican President George W. Bush, issued a similar ruling in 2021 when he found that the original Obama administration memo that created DACA in 2012 was illegal.
While he agreed to a request from Republican officials in Texas and eight other states to declare the Biden administration’s regulation illegal, Hanen did not grant another request to order a complete termination of DACA over two years. In 2021, Hanen also allowed existing DACA recipients to continue renewing their two-year work permits and deportation protections, even though the programme was closed to new applicants.
The Biden administration is expected to appeal Wednesday’s ruling, and the case is likely to reach the Supreme Court. The 5th Circuit Court of Appeals, which is tasked with reviewing appeals of Hanen’s rulings, also declared DACA illegal last year.
Since 2012, DACA has allowed hundreds of thousands of immigrants who crossed the US southern border illegally as children or overstayed their visas to live and work in the country without fear of deportation if they meet certain requirements. These include not having a serious criminal record, arriving in the US before June 2007 and before the age of 16, and graduating from an American high school or serving in the military.
At the end of March, 578,680 immigrants were enrolled in DACA, and more than half of them lived in California, Texas, Illinois and New York, according to government data.
DACA has been at the centre of the nation’s contentious immigration debate since its inception 11 years ago, when former President Barack Obama announced it as a “stopgap” measure amid congressional inaction on the issue.
While Congress has considered several bipartisan proposals to provide permanent legal status to DACA recipients and other unauthorised immigrants brought to the country as children since 2001, the bills have been caught up in broader, partisan debates over other immigration issues, such as US policy along the southern border.
As part of its wider crackdown on illegal and legal immigration, the Trump administration moved to end DACA in the autumn of 2017. However, the policy was kept alive by federal courts, including the Supreme Court, which ruled in 2020 that the Trump administration had not properly rescinded the programme.
Hanen first ruled on the legality of DACA in 2021, finding that the Obama administration did not have the legal authority to grant work permits and deportation protection to hundreds of thousands of immigrants who lacked legal immigration status. He closed the programme to new applicants but allowed the government to continue processing renewal applications, expressing sympathy for DACA recipients and their families.
In his order on Wednesday, Hanen said there were no “substantive differences” between the original 2012 DACA policy and the rule published by the Biden administration in 2022 to convert the programme into a federal regulation. “As such,” he wrote, “the final rule suffers from the same legal impediments.”
Hanen kept DACA closed to new applicants, but again stayed part of his ruling to allow current DACA beneficiaries to renew their enrolment in the programme, noting that he was “sympathetic” to their plight. However, Hanen was critical of the Biden administration’s regulation, saying the fate of DACA recipients must be decided by Congress, not federal courts or the president.
“Congress’s alleged failure to pass legislation, or, put another way, its decision not to pass legislation, does not authorize the Executive Branch to ‘legislate’ on its own – especially when that ‘legislation’ is contrary to actual existing law,” Hanen wrote. “The Executive Branch cannot usurp the power vested in Congress by the Constitution – even to fill a void.”
In a statement on Wednesday, Homeland Security Secretary Alejandro Mayorkas disputed Hanen’s legal opinion, saying the ruling “undermines the safety and stability of more than half a million Dreamers who have contributed to our communities”.
“As the Secretary of Homeland Security who issued a final rule last year to preserve and strengthen DACA, and as the former Director of U.S. Citizenship and Immigration Services (USCIS) who led the development and implementation of DACA in 2012, I am deeply disappointed by the ruling and am uniquely qualified to say that DHS believes DACA is lawful and constitutional,” Mayorkas said.
White House press secretary Karine Jean-Pierre, meanwhile, said the Biden administration would “continue to defend this critical policy against legal challenges”.
“We are committed to protecting all Dreamers who have enriched our communities and our country throughout their lives, and we continue to call on Congress to provide permanent protection for the hundreds of thousands of Dreamers in the United States,” Jean-Pierre added.
