DACA is Under Immediate Threat

DACA is Under Immediate Threat

JoAnn Goedert, Ignatian Volunteer Corp Member
Government Relations Special Contributor
Updated June 15, 2023
Previous posts appeared on January 23, 2023 and October 27, 2022

In  JoAnn Goedert’s most recent DACA update, we learn that  Judge Andrew Hanen’s final order on the policy under which Dreamers have built homes, attended schools, and raised children is imminent. 

June 15, 2023

There may soon be a decision in the court case brought against the Deferred Action for Childhood Arrivals program (DACA). In previous updates (see below), NETWORK has shared why DACA is under threat and the progress of Texas v. U.S., et al., the continuing court battle waged by a group of Republican state attorneys general to have DACA declared unlawful. On June 1, Judge Andrew Hanen held another hearing. The judge’s final order could come any day—or it could take months. The timing is entirely up to his discretion.

In 2021, Judge Hanen issued his first ruling in this case and agreed with these anti-immigrant officials that DACA is unlawful. His order barred the approval of any new DACA applications but included a stay that allowed current participants to remain in the DACA. On appeal, the Fifth Circuit Court of Appeals affirmed Judge Hanen’s reasoning, returned the case to him for further proceedings, and continued to stay the enforcement of the decision against current DACA participants.  The Fifth Circuit’s actions resulted in last week’s hearing and will end with a final order by Judge Hanen.

For now, the status of the DACA program is unchanged, with no new approvals permitted and current DACA participants able to continue to benefit from it. Unfortunately, most legal immigration experts and advocates expect that Judge Hanen will once again declare DACA unlawful when he issues his next decision. Assuming that disappointing outcome, DACA will surely remain closed to new applicants and the government will appeal the decision to the Fifth Circuit Court of Appeals. Since the Fifth Circuit has already taken the position that DACA is likely unlawful, it is sadly likely that the Administration’s appeal of a negative decision by Judge Hanen will be unsuccessful, and that the case will then be appealed to the Supreme Court.

Judge Hanen is expected to continue to allow current DACA participants to continue in the program while the appeal process takes place. Otherwise, the Administration will rapidly seek a continuation of the current stay that protects their participation, and experts believe that the Fifth Circuit will allow it. If the Fifth Circuit were to change its position, the Administration would likely seek an immediate continuation of the stay in the Supreme Court. Few expect the courts to end DACA protections for current participants for at least as long as the current case is winding through the appeals process.

An appeal through both the Court of Appeals and the Supreme Court almost always takes many months to be resolved. Thus, it is possible that the Supreme Court would not rule on the legality of the DACA program until well into 2024 and, perhaps, until 2025. Meanwhile, there is some hope that the Administration will attempt to provide alternative, partial safeguards for Dreamers, and that there may be renewed interest in Congress to finally protect them with legislation.

Be assured that NETWORK will continue its efforts to promote positive immigration reform that offers permanent protection for our young immigrant Dreamers. And, we will alert justice-seekers and supports of developments in the DACA court case–  and any potential responses to it by the White House and Congress.

Updated on January 23, 2023 

Previously, JoAnn Goedert shared that DACA was under immediate threat. Sadly, the message in this update remains the same — the policy under which Dreamers have built homes, attended schools, and raised children remains on course to be struck down.

Whether Dreamers are teachers, landscape artists, or doctors, they are integral members of families, churches, and communities. Some people with political and judicial power fail to see their humanity, but we know they are our siblings in God’s beloved community and should not suffer as pawns in court proceedings. 

As JoAnn writes, “Once Judge Hanen issues his final decision, the case almost certainly will be appealed to the Fifth Circuit Court of Appeals and then to the Supreme Court.” As people of faith, we must be vigilant in our efforts to protect DACA. Working together, we can overcome the forces who want to remove our neighbors and family members from our country.

NETWORK will let you know when there is action you can take. For now, read on for JoAnn’s update and scroll further for her original blog. 

Texas v. U.S., et al.: In response to Texas v. U.S., a lawsuit challenging DACA’s legality by a group of Republican state attorneys general, Judge Andrew Hanen in the U.S. District Court of the Southern District of Texas ruled in 2021 that DACA is unlawful. He held that DHS failed to follow required regulatory process when it established DACA and that the agency did not have the power to create the program without Congressional legislation. The judge issued an order barring DHS from approving any new DACA applications but he allowed current participants to retain protection under DACA for now. On appeal, the Fifth Circuit Court of Appeals agreed with Judge Hanen’s reasoning and returned the case to him for further proceedings.

In October 2022, Judge Hanen held a hearing where he stated that he would likely decide to end DACA in the near future. His ultimate decision has been delayed, however, to give the parties an opportunity to file additional briefs in the case. At this time, we don’t expect movement until mid-Spring. DACA is under immediate threat and daily life for DACA recipients remains in jeopardy.

What Happens Next: In the October hearing, Judge Hanen reiterated that current DACA participants can continue in the program and apply for renewals, but that DHS cannot accept any new DACA applications. This means that current DACA holders still have all of the program’s protections. Once Judge Hanen issues his final decision, the case almost certainly will be appealed to the Fifth Circuit Court of Appeals and then to the Supreme Court. This process will likely extend into 2024, and it is hoped that, at least, the courts will allow the program to continue for current DACA participants during this time. Meanwhile, we know the Biden Administration is exploring alternative protections for Dreamers in preparation for negative court actions.

Congress’ Failure: As in earlier Congresses, legislation was introduced in 2021 to give DACA recipients permanent U.S. residency status. There was some hope, too, that Congress would act to ensure the program’s future during the final weeks of 2022. But once again, legislative efforts failed. There is little optimism that the program will fare better in the 118th Congress. Given the worrying signs from both the courts and Congress, we must all heed the warning of DACA advocates at United We Dream: “DACA is dying.”

October 27, 2022

10 Years of DACA: After repeated efforts to reform the U.S. immigration system failed—for lack of adequate Republican support—President Obama’s Department of Homeland Security (DHS) established the Deferred Action for Childhood Arrivals (DACA) program in 2012. DACA has provided children brought to this country in violation of established federal immigration law protection from deportation, employment authorization, and access to Social Security and Medicare benefits.  It has been a lifeline to young immigrants, also known as Dreamers, who came to the U.S. as children with undocumented status. While 800,000 participants have been able to build a life in this country under the program, DACA is under immediate threat, its future is in jeopardy.

The Trump Administration’s Attack on DACA: In 2017, the Trump administration cruelly attempted to rescind DACA, but the Supreme Court ruled that the rescission did not comply with the federal Administrative Procedures Act and narrowly upheld the program’s continuation. DACA has endured with support from the Biden Administration which recently issued proposed regulations–scheduled to take effect on October 31–under the APA to continue DACA permanently.   

The Current Threat to DACA in the Courts: Nonetheless, a group of Republican state attorneys general filed yet another challenge to DACA in a federal district court in Texas. In July 2021, Judge Andrew Hanen ruled that DACA is unlawful on the grounds that DHS did not follow proper APA procedures when it established the program, and that the agency lacked the authority to establish the program without Congressional authorization. The judge issued an injunction barring DHS from approving new DACA applications, but allowed current participants to continue in the program.

On appeal, the Fifth Circuit Court of Appeals, known for its conservatism, upheld Judge Hanen’s decision. However, with the DHS’s new DACA regulations set to kick in on October 31, the Court of Appeals remanded the case to Judge Hanen for further consideration. 

What Happens Next:  In a hearing last week, Judge Hanen indicated that, despite the new regulations, he will very likely decide to end DACA in the near future. His final decision has not been issued yet, so current DACA participants can continue in the program and apply for renewals.  However, there is little reason for optimism.  As DACA advocates at United We Dream have warned, “DACA is dying.”

Judge Hanen’s signal makes it clear that DACA is under immediate threat. It is crucial that the Biden administration and Congress act to ensure the program’s future with immediate legislation. Congress will return shortly after the Midterm elections. Faith communities, and all people of good will, must advocate for DACA legislation this year to provide permanent protection for our nation’s Dreamers.