Judge Rules DACA Is Unlawful and Suspends Applications

By Miriam Jordan

The judge said President Barack Obama exceeded his authority when he created the program, but for now people protected under it will retain the ability to stay and work in the United States.

Supporters and beneficiaries of the Deferred Action for Childhood Arrivals program rallied outside the White House last month.
Supporters and beneficiaries of the Deferred Action for Childhood Arrivals program rallied outside the White House last month.Credit...Jim Lo Scalzo/EPA, via Shutterstock
Miriam Jordan

A federal judge in Texas on Friday ruled unlawful a program that has shielded hundreds of thousands of undocumented young adults from deportation, throwing into question yet again the fate of immigrants known as Dreamers.

The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program, Deferred Action for Childhood Arrivals, by executive order in 2012.

But the judge wrote that current program recipients would not be immediately affected, and that the federal government should not “take any immigration, deportation or criminal action” against them that it “would not otherwise take.”

The Department of Homeland Security may continue to accept new applications but is temporarily prohibited from approving them, the judge ruled. Immigrants currently enrolled in the program, most of whom were brought to the United States as children, will for now retain the ability to stay and work in the country, though those protections could evaporate if the government is unable to rectify a series of legal shortcomings.

Judge Hanen, who was appointed by President George W. Bush, ruled that the creation of the program violated the Administrative Procedure Act, in part because comment from the general public was never sought. “D.H.S. failed to engage in the statutorily mandated process,” he wrote, “so DACA never gained status as a legally binding policy that could impose duties or obligations.”

The Biden administration is expected to appeal the ruling, and unless Congress steps in with a legislative remedy, the ultimate legality of DACA is almost certain to be decided by the Supreme Court.

Since its inception, DACA has enabled more than 800,000 immigrants who were brought illegally to the United States or fell into unlawful status when they were children to remain in the country and secure work authorization.

A backlog of new and renewal applications had accumulated because the coronavirus pandemic hampered government processing of immigration cases.

“I was working through the pandemic and going through this process for years,” said William Cabeza Castillo, 32, a DACA recipient in New York who was brought to the United States when he was 3. “This makes me feel like a second-class citizen.”

Mr. Cabeza Castillo, who worked as a health aide at a hospital, is currently on unpaid leave because his renewal — required every two years — has not been processed and his protected status, which he had since 2014, expired on June 20.

Knowing that Friday’s ruling did not impede renewals was still not reassuring, he said. “It’s a lot of uncertainty. I’m frustrated by the whole system.”

President Biden moved to strengthen the DACA program on his first day in office, and in the absence of comprehensive immigration reform, the idea of extending a path to citizenship to the young immigrants who have enrolled has attracted bipartisan public support.

But the court ruling in Texas has introduced a new complication for the hundreds of thousands of people who have been able to build families, buy homes and work at jobs in the United States without fear of deportation. The ruling also represents a significant new challenge for Mr. Biden as he attempts to build support in Congress for his ambitious plan to allow up to 10 million other immigrants to live in the country legally.

Advocates have been urging Democrats to use the budget reconciliation process to provide expedited citizenship to Dreamers, and that pressure is likely to mount.

“Unless Congress acts for the Dreamers, DACA is likely to be entangled in litigation and legal doubt for a while,” said Michael Kagan, director of the immigration clinic at the University of Nevada, Las Vegas. “And there’s no reason to think Congress will act quickly or easily.”

He added, “Unfortunately, Dreamers may have to live with some level of doubt and anxiety for the foreseeable future.”

Lawyers from the Mexican American Legal Defense and Educational Fund had urged the judge to refrain altogether from ruling, citing Mr. Biden’s directive to the Department of Homeland Security to create rules to fortify the program, and legislation introduced recently in Congress that would put Dreamers on a path to citizenship.

“The decision does not reflect new developments in the law, including from the Supreme Court and therefore presents many grounds for successful appeal,” said Thomas A. Saenz, president and general counsel of the legal defense fund.

“The most important thing is, current recipients are protected,” he said.

Texas led the effort to terminate the program, and was joined by Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia. Officials in those states had argued that the program was improperly adopted and left them with the burden of paying for education, health care and other benefits for immigrants who remained in the country under DACA’s protections.

In his 77-page opinion, Judge Hanen said that Congress had reserved the broad authority to regulate immigration, and that it had declined several times to give legal status to a group like the Dreamers.

“The executive branch cannot just enact its own legislative policy when it disagrees with Congress’s choice to reject proposed legislation,” the judge wrote. “Congress has not given D.H.S. the power to enact DACA.”

Currently, about 650,000 immigrants are enrolled in the program. Among them are some 200,000 frontline workers who have performed essential jobs in health care, agriculture, food processing and education during the pandemic.

President Donald J. Trump announced a cancellation of the program in 2017 but several federal court rulings barred him from completely terminating it. Recipients were allowed to renew their DACA enrollment even though new applications were not accepted.

With the embattled program’s future still up in the air, Texas and the other states filed a lawsuit in 2018 that called for the program’s “immediate” rescission. Judge Hanen declined to issue a preliminary injunction, saying that the “egg had already been scrambled” and that “to try to put it back in the shell” did not serve the best interests of the country.

He warned, however, that the states were likely to “prevail on the merits of their argument that DACA was unlawful.”

In June 2020, the Supreme Court ruled against the Trump administration’s decision to terminate the program, deeming its rescission “arbitrary and capricious.” But the court did not rule on whether the program had been legally adopted.

When the Trump administration challenged the DACA program in 2017, supporters in New York marched from Columbus Circle to near Trump Tower.Credit...Hiroko Masuike/The New York Times

In December, the administration was ordered by a federal judge in New York to begin accepting applications for new DACA applicants, opening the door for thousands of people who had been shut out while such applications had been suspended.

But the case in Texas continued to wind its way through the court.

“We knew there was still a threat out there. So we said, please, please apply,” recalled Julie Mitchell, managing attorney at the Central American Resource Center, a legal-aid organization in Los Angeles that has helped thousands of students file applications.

To qualify for DACA, applicants must have entered the United States before age 16, lived in the country continuously since June 2007, finished high school or enlisted in the military, and have a clean criminal record.

Sarahi Magallanez, a psychology student in Los Angeles, is among thousands of young immigrants still waiting for the approval of new applications.

On hearing the news, she cried: “Oh, no. No. No. This is just really bad.”

Ms. Magallanez said she had received a notification from U.S. Citizenship and Immigration Services on Tuesday that her application had been received and was being processed.

“I was banking on this to start my career,” she said, breaking into tears. “Now there is a chance I can’t. DACA is not safe, and we are at the mercy of whoever is in power.”

There is broad support in the American public for allowing Dreamers to remain in the country. In a Pew survey conducted last year, about three-quarters of respondents, including majorities of Democrats and Republicans, favored extending them a pathway to permanent legal status.

When Mr. Obama rolled out the program, it was intended as a temporary measure in the absence of more comprehensive immigration legislation, which Congress has been unable to pass over the past two decades.

New proposals have already drawn stiff opposition from Republicans, who have resisted offering legal status to hundreds of thousands of immigrants while there are large numbers of unauthorized migrants crossing the southwestern border.

About 250,000 U.S.-born children have at least one parent who is enrolled in DACA, and about 1.5 million people in the United States live with a beneficiary of the program.