Federal judge again declares DACA immigration program unlawful, but allows it to continue

A federal judge on Wednesday again declared the Deferred Action for Childhood Arrivals (DACA) immigration program unlawful, though he refrained from ordering officials to terminate deportation protections and work permits for 580,000 immigrant “Dreamers.”

At the request of Republican-led states, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas ruled that a Biden administration effort to codify the DACA policy into a federal regulation was unlawful. Hanen, who was named 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 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 beneficiaries to continue renewing their two-year work permits and deportation protections, despite closing the program 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, 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 U.S. southern border illegally or overstayed visas as children to live and work in the country without fear of deportation if they meet certain requirements. They include lacking a serious criminal record; coming to the U.S. before June 2007 and by age 16; and graduating from an American high school or serving in the military.

As of the end of March, there were 578,680 immigrants 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 center of the nation’s contentious immigration debate since its inception 11 years ago, when former President Barack Obama announced it as a “stop-gap” measure amid congressional inaction on the issue.

While Congress has considered several bipartisan proposals to provide permanent legal status to DACA recipients and other unauthorized immigrants brought to the country as children since 2001, the bills have been caught up in broader, partisan debates over other immigration issues, such U.S. policy along the southern border.

As part of its larger crackdown on illegal and legal immigration, the Trump administration moved to terminate DACA in the fall of 2017. But the policy was kept alive by federal courts, including the Supreme Court, which in 2020 ruled that the Trump administration had not properly rescinded the program. 

Hanen first ruled on DACA’s legality in 2021, finding that the Obama administration did not have the legal authority to grant work permits and deportation protections to hundreds of thousands of immigrants who lacked a lawful immigration status. He closed the program to new applicants, but allowed the government to continue processing renewal requests, expressing sympathy for DACA recipients and their families.

In his order on Wednesday, Hanen said there were no “material differences” between the original 2012 DACA policy and the rule published by the Biden administration in 2022 to transform the program 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 suspended part of his ruling to allow current DACA beneficiaries to renew their enrollment in the program, noting he was “sympathetic” to their plight. However, Hanen was critical of the Biden administration’s regulation, saying the fate of DACA recipients needs to be decided by Congress, not federal courts or the president.

“Congress’s alleged failure to pass, or, stated differently, its decision not to enact legislation, does not empower the Executive Branch to “legislate” on its own — specially when that “legislation” is contrary to actual existing legislation,” Hanen wrote. “The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”