Judge Rules DACA is Unlawful but Allows Current DACA Recipients to Maintain Status

On September 13, Federal Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. The program protects almost 600,000 undocumented immigrants brought to the U.S. as children from deportation and provides them with work permits. 

Go deeper: 

  • The ruling did not surprise immigrant advocates because Judge Hanen, a Republican-appointed judge, has a history of ruling against programs that protect undocumented immigrants from deportation, including a previous ruling against the DACA program in 2021. 
  • In response to the prior ruling, the Biden administration issued a regulation to preserve the program. In response, nine states sued to halt DACA a second time, arguing that the new regulation is essentially the same as the 2012 policy that was declared “unlawful and unconstitutional” by Judge Hanen in 2021. 

What they’re saying: 

  • The states argued that the DACA regulation, among other things, violated the Administrative Procedures Act (APA), federal immigration laws, and the Constitutional requirement for separation of powers. 
  • The Biden administration, joined by the Mexican American Legal Defense and Education Fund (MAALDEF), urged the court to dismiss the case because the plaintiff states did not have standing to sue. They had further argued that if the court found certain portions of the DACA program unlawful, such as the work permit provisions, it should still leave other portions intact.

Judge Hanen rejected these arguments and declined to leave any part of the regulations intact. He reaffirmed that the DACA program created under President Barack Obama in 2012 exceeded executive action authority and that the new regulation enacted under the Biden administration did not cure any of the defects identified by the courts in the 2021 ruling.

What’s next: The current ruling is expected to be appealed to the 5th Circuit Court of Appeals and eventually to the Supreme Court. Judge Hanen did allow current DACA recipients to maintain their status, and those who obtained status before July 16, 2021, can apply for DACA renewal; however, no new DACA applications may be processed. An estimated 400,000 people would have been eligible to apply for DACA for the first time but are unable to as a result of Judge Hanen’s rulings. 

The big picture: The ruling highlights the need for legislative action to protect the DACA program, and many, including the Biden administration, have called for Congressional action to protect Dreamers with or without DACA. Some lawmakers, including Sen. Dick Durbin (D-IL), have indicated their willingness to introduce legislation that would address DACA but have also addressed that it would be challenging to pass in the current Congress. DACA recipients have contributed around $108 billion to the U.S. economy and $33 billion in taxes since the program started in 2012.

Erickson Insights and Analysis

Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.