DACA is Under Immediate Threat

DACA is Under Immediate Threat

JoAnn Goedert, Government Relations Special Contributor
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.