Federal Judge Rules DACA Not Legal But Keeps Protections Intact For Current DREAMers

U.S. District Judge Andrew Hanen declared DACA, a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children, to be illegal in a decision today, Wednesday, August 13, 2023. His decision did however stop short of an immediate end to the program and the protections it offers to recipients.

Texas and eight other states [Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi] brought the lawsuit to stop the Deferred Action for Childhood Arrivals, DACA. The judge’s ruling was ultimately expected to be appealed to the U.S. Supreme Court, sending the program’s fate before the high court for a third time.

Judge Hanen, who was appointed by President George W. Bush, had previously said DACA was unconstitutional. He had also previously ruled the states had standing to file their lawsuit because they had been harmed by the program.

This case was before the Fifth Circuit Court of Appeals in 2022 who upheld Judge Hanen’s previous decision but remanded the case back to him to rule on the changes made by the Biden administration. In his 2021 decision, Hanen had declared the program illegal, ruling it had not been subject to public notice and comment periods required under the federal Administrative Procedures Act. The Biden administration tried to satisfy Hanen’s concerns with a new version of DACA that took effect in October 2022 and was subject to public comments as part of a formal rule-making process.

In today’s decision Hanen ruled the updated version of DACA was still illegal as the Biden administration’s new version was essentially the same as the old version, started under the Obama administration, even though this time it was subject to public comments as part of the rule-making process, which was the reason why he had most recently deemed it to be illegal last time the question was before his Court. I haven’t read the full text of the decision yet so I cannot tell you how he came to this conclusion but it seems like he would have had put some serious effort into this.

One portion of the decision quoted by the Tampa Bay Times:

“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 in his 40-page ruling. “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 … The Executive Branch cannot usurp the power bestowed on Congress by the Constitution – even to fill a void.”

Tampa Bay Times

The Judge’s order extends the current injunction that had been in place against DACA, which barred the government from approving any new applications, but leaves the program intact for existing recipients while the courts work all of this out.

The judge also declined the States’ request to order the program’s end within two years. Judge Hanen said his order does not require the federal government to take any actions against DACA recipients.

There were 578,680 people enrolled in DACA at the end of March, according to U.S. Citizenship and Immigration Services. President Joe Biden and advocacy groups have called on Congress to pass permanent protections for ” dreamers.” Congress has failed multiple times to pass proposals called the DREAM Act to protect DACA recipients.

This decision leaves everything in the same place it was before the decision. USCIS will continue accepting applications but will not be processing new applications. Renewals will be processed and a receipt notice will be issued but until this matter is resolved by the Supreme Court they are unable to grant or extend benefits. Read USCIS’ current policies regarding DACA on their website. USCIS had not yet posted any update regarding today’s decision but it is expected to do so tomorrow.

THE DECISION

Hanen’s 2021 Decision on DACA is below. Today’s decision will be posted here once the full decision becomes available.: