DACA RULED UNLAWFUL AND NEW APPLICATIONS STAND BLOCKED
What is DACA?
The Deferred Action for Childhood Arrivals (“DACA”) program was the initiative by President Obama which provides for the protection against deportation and work permits to young immigrants (known as Dreamers). It was established in 2012 and has been instrumental in securing citizenship for young immigrants who were brought to the U.S. as children and have since then lived in the country illegally. Currently, there are approximately 650,000 Dreamers enrolled in the program.
DACA offers such Dreamers temporary protections from deportation and grants them work permits for a period of two years at a time. It also has the power to permit the immigrants to exit the country safely without the threat of being blocked.
The continued tumultuous journey of DACA
DACA has been enveloped with controversy and litigation since its inception. Its survival has been dependent on court decisions since there has been no concrete legal stand on it yet. President Donald Trump wanted to terminate the DACA more than a year ago. However, the Supreme Court in June 2020 ruled against such termination, but the court never ruled on the legal adoption of the program.
Recently held: DACA is Unlawful and is to be set aside
On July 16, 2021, a U.S. district court in Texas issued a decision and injunction in Texas v. United States, ruling that DACA is unlawful. But it also held that it will allow DACA to continue for those who already have it and for the continued renewals.
The judge, Andrew S. Hanen, said that President Barack Obama went beyond this authority when he created the program. Through his 77-page opinion, it is now the position that:
1. The DACA program is unlawful,
2. The DACA program is to be set aside along with the 2012 U.S. Department of Homeland Security (DHS) memorandum that originally established DACA, and
3. DHS is to act on complying with this court’s order.
For the current DACA recipients, they have the option of renewing their DACA through the U.S. Citizenship and Immigration Services (USCIS). The decision also emphasized that it does not terminate any existing grants of DACA. Therefore, people who have DACA shall not lose it due to the court’s order.
Regarding the people who are eligible for DACA but have not been granted it, the court’s order states that:
1. USCIS can continue to accept first-time DACA requests, but
2. the federal government is prohibited from approving any first-time DACA requests after July 16, 2021.
Judge Hanen ruled that the creation of the program partially violates the Administrative Procedure Act as comments from the general public were never sought. He further opined that “D.H.S. failed to engage in the statutorily mandated process. So, DACA never gained status as a legally binding policy that could impose duties or obligations.”
The Biden government has announced that it will appeal this decision to the Fifth Circuit Court of Appeals. Unless there is a remedial intervention from the Congress, the ultimate fate and legality of DACA will be decided by the Supreme Court.