Federal judge has ruled again that the Deferred Action for Childhood Arrivals program is illegal

WASHINGTON — A federal judge has ruled again that the Deferred Action for Childhood Arrivals program is illegal. The policy protected from deportation hundreds of thousands of undocumented immigrants brought to the United States as children.

The decision does not immediately affect DACA recipients, whose status remains the same through the legal appeals process. They also can continue to renew their status, as they are required to do every two years.

So, what is next?

The Biden administration is expected to appeal the ruling, delivered Wednesday by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, leaving the ultimate decision on the fate of DACA and its more than 500,000 recipients and their families in the hands of the U.S. Supreme Court.

“Consistent with the ruling, USCIS will continue to process DACA renewals, and DHS will continue to advocate on behalf of DACA recipients every day, in the courts and through our actions. We stand ready to work with Congress on an enduring solution for our Dreamers,” U.S. Department of Homeland Security Secretary Alejandro Mayorkas said in a statement, referring to U.S. Citizenship and Immigration Services.

Beneficiaries of the program are sometimes referred to as “Dreamers.”

The case is expected to return to the 5th U.S. Circuit Court of Appeals. That court last ruled on DACA in October 2022, when it returned the case to Hanen for review of a new regulation.

Immigration advocates said a hearing in the 5th Circuit would not take place until 2024. And if the appeals court agrees with Hanen’s finding, the three-judge panel’s ruling could include an end to the current DACA renewals.

Whatever the appeals court decides, it will likely be appealed to the U.S. Supreme Court. A decision from that would not come until at least spring 2025, according to immigration advocates.

DACA recipients and immigration advocates said this fight has been going on for too long — but they do not plan to stop fighting.

“Ultimately the issues that are key here in this case, which are the issues around standing and the legality of the DACA program, will have to be resolved in the higher courts,” said Andrea Senteno, regional counsel at the Mexican American Legal Defense and Educational Fund.

Senteno said even though she believes the judge’s decision is flawed, the takeaway from Wednesday’s decision remains this: Legislation is the only way to resolve this issue, and it is long overdue.

“Congress has abandoned its responsibility to the public to consider and enact legislation that provides a pathway to citizenship for DACA holders and others,” she said.

‘At the mercy of courts’

Areli Hernandez is one of the more than 580,000 current DACA holders. Originally from Mexico, she was brought to the U.S. when she was 5 years old. Hernandez said the judge’s decision is “deeply upsetting.”

“Immigrants with DACA have to live with the lack of permanency, and yesterday’s decision lets us see that it’s at the mercy of courts,” she said.

Hernandez works for an immigration advocacy group while coping with her own immigration situation. DACA holders work legally in the U.S.

“I’m a DACA holder. My family is here. My heart is here. My home is here. Like me, there are more than half a million folks who are DACA holders, and we have developed deep roots along with our families and immigrant community [in the U.S.],” Hernandez said.

In Hanen’s 50-page order, he wrote: “While sympathetic to the predicament of DACA recipients and their families, this court has expressed its concerns about the legality of the program for some time.”

“The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation. … The executive branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void,” he said.

Hopeful for ‘checks and balances’

Republican-led states have challenged the DACA program in court, aiming to terminate it.

In 2018, Texas and several other Republican-led states sued the federal government, arguing that DACA had harmed states financially because they were spending resources on education, health care and other services on undocumented immigrants, who were allowed to remain in the country.

They also argued that only Congress has the authority to grant immigration benefits.

In a statement in 2018, now-suspended Texas Attorney General Ken Paxton said he was “hopeful that our judicial system will once again deliver a victory for American sovereignty and for proper checks and balances against the executive branch.”

But Hanen declined the states’ request to end the program within two years and said his decision did not force the government to do anything against DACA recipients, who are also known as Dreamers after the Dream and Promise Act or Dream Act first proposed in 2001.

The legislation passed the U.S. House twice, in 2021 and 2022, and would create a pathway to permanent residence for those brought to the U.S. as children. But it has yet to pass in the Senate.

The Dream Act was introduced again in 2023.

By Aline Barros