Federal judge again rules DACA is illegal

FILE - Susana Lujano, left, a dreamer from Mexico who lives in Houston, joins other activists to rally in support of the Deferred Action for Childhood Arrivals program, also known as DACA, at the Capitol in Washington, Wednesday, June 15, 2022. A federal judge on Wednesday, Sept. 13, 2023, declared illegal a revised version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children. (AP Photo/J. Scott Applewhite, File)

A federal judge in Texas on Wednesday rejected the Biden administration’s latest effort to save a program that has shielded hundreds of thousands of young adults living in the country without legal permission from deportation, saying that it remained unlawful even after recent changes.

The judge, Andrew Hanen of the U.S. District Court in Houston, maintained that President Barack Obama exceeded his authority when he created the Deferred Action for Childhood Arrivals program, or DACA, by executive action in 2012.


The decision is the latest twist in a five-year-long court saga that has left the program and its beneficiaries, known as Dreamers, hanging in the balance. While the ruling is a blow to the immigrants, the judge did not mandate an immediate end to the program. Current applicants will be able to keep and renew their protection. No new applications will be allowed.

The Biden administration initiated a rule-making procedure in 2021 to explicitly attempt to bolster DACA’s legal standing, but the rule issued by the administration did not sway the judge.

“There are no material differences,” the judge wrote in his 40-page opinion. But he added that his decision did not compel the government to “take any immigration, deportation or criminal action against any DACA recipient.”

The government is almost certain to appeal the decision to the 5th Circuit Court of Appeals, experts said, and the case is likely to end up in the Supreme Court.

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which represented DACA beneficiaries in court, said that “it was clear that the higher courts, including the Supreme Court, would have to ultimately decide” the fate of the program.

“We look forward to continuing to defend the lawful and much-needed DACA program on review in higher courts,” he said.

In 2021, Hanen sided with Republican-led states that had sued and ruled that DACA was illegal because, among other things, the government had not fulfilled a mandatory public-notice-and-comment period. He allowed current enrollees to keep renewing every two years but banned new applicants, rendering tens of thousands of younger immigrants living in the country without legal permission ineligible for the benefit.

The next year, the U.S. Court of Appeals for the 5th Circuit upheld Hanen’s decision but sent the case back to the lower court to review a new DACA rule put in place by the Biden administration to address the concern about the implementation process.

In his opinion Wednesday, Hanen, nominated by President George W. Bush, said that the administration’s effort amounted to “instituting its own solution, regardless of the dictates of Congress.”

He added, “The executive branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”

Hanen said that the new rule was unlawful for the same reasons that the 2012 memorandum that created DACA was.

Since taking effect 11 years ago, the program has benefited more than 800,000 young people; currently, about 600,000 people are enrolled.

DACA beneficiaries generally were brought to the United States as children through no choice of their own.

They lack lawful status because they either entered the country without papers or overstayed their visas.

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