We are saddened to report that late Friday, July 16, 2021, Federal Judge Andrew Hanen of the United States District Court for the Southern District of Texas, granted the plaintiffs in the case, State of Texas, et al., vs. United States of America, et.al, a permanent injunction, pending ongoing litigation over the legality of the Deferred Action for Childhood Arrivals (DACA) program.
As a result, new first-time applications for the DACA program will no longer be approved by the United States Citizenship and Immigration Services (USCIS) following Judge Hanen’s ruling. Friday’s decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld, especially by the conservative leaning Supreme Court of the United States.
In his ruling, Federal Judge Hanen declared that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) with the initial creation of the Deferred Action for Childhood Arrivals (DACA) program and its continued operation. Accordingly, he has ordered that the DACA Memorandum and the subsequent creation of the DACA program be vacated and remanded to DHS for further consideration.
This action removes protections from deportation for thousands of undocumented young adults who came to the United States as children, otherwise known as Dreamers, and casts doubt on the future of the program.
Judge Hanen specifically stated that his ruling does not impact the hundreds of thousands of DACA recipients and others who have relied on the DACA program for almost a decade. This means that while new first-time applications for DACA will no longer be adjudicated by USCIS, Hanen’s ruling will not impact current DACA recipients.
Those who have already received DACA do not need to worry at least until the expiration of their current DACA and respective employment authorization documents (EADs).
Further, Hanen instructed that while his court order prevents DHS from approving any new first-time DACA applications and granting deferred action, USCIS may continue to accept DACA renewal applications pursuant to the Wolf, et al. v. Batalla Vidal, et al. court order.
Hanen’s order also does not direct DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take. Therefore, current DACA recipients remain a very low priority for deportation.
Friday’s ruling does not impede renewal applications for those already in the DACA program, and it does not rescind any benefits already issued to DACA recipients, such as Deferred Action and Employment Authorization Documents (EADs) already issued. Judge Hanen’s order merely prevents the adjudication of first-time applications for DACA. USCIS is expected to update its website in the coming days providing guidance and compliance measures following Friday’s decision.
It is quite certain that the Biden administration will appeal Judge Hanen’s ruling in the coming days. However, the future of the DACA program remains in the balance until Congress steps in with a legislative remedy.
Congressional action is needed given the program’s bleak chances of survival with the Supreme Court, considering recent appointments made by former President Donald Trump including those of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Barrett, changing the composition of the court to one that is largely conservative on immigration issues.
Judge Hanen’s decision creates further complications for an immigration system that has been crippled by the Coronavirus pandemic. A substantial backlog of new and renewal DACA applications has accumulated due to the agency’s inability to cope with high demand with little staff and fewer resources. It is estimated that there more than 826,000 young adults currently enrolled in the program, and more than 1.3 million residents have been eligible to apply.
We hope that this new ruling will push the Biden administration and its Congressional allies to reach a compromise on immigration reform once and for all. We will continue to post further information on the fate of DACA right here on our blog.
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