Federal judge declares revised DACA illegal

September 14, 2023

A federal judge in Texas on Wednesday declared a revised version of the Deferred Action for Childhood Arrivals (DACA) program was illegal.

Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas agreed with that state and eight others who filed a lawsuit in February to end the program, impacting DACA’s nearly 600,000 enrollees, undocumented migrants brought to this country as children who are known as “Dreamers.”

In a 40-page ruling, Hanen, a Bush appointee, 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.”

In July 2021 Judge Hanen declared the original version of DACA illegal, and the Biden Administration attempted to satisfy his concerns by writing a revised version of the program that took effect in October 2022—but Hanen ultimately concluded that the revised version was essentially the same as the original.

The plaintiff states had argued that the Obama Administration didn’t have the authority to first create the program in 2012 because it circumvented Congress, and Hanen repeated his earlier agreement with this assertion, writing, “The solution for these deficiencies lies with the legislature, not the executive or judicial branches.” 

The judge further noted that “Congress, for any number of reasons has decided not to pass DACA-like legislation.”

In December 2022,  Sens. Thom Tillis (R-NC) and Kyrsten Sinema (I-AZ) unsuccessfully attempted to secure compromise legislation that would put the Dreamers on a path to citizenship in exchange for increased border security. It failed in the 117th Congress’ lame duck session, and was seen as likely the last opportunity  to pass legislation to protect the Dreamers before Republicans took control of the House that January.

Hanen’s order extended a current injunction that’s been in place against DACA. His decision bars the federal government from approving any new DACA applications but leaves the program intact for existing recipients during the expected appeals process.

The judge did decline a request by the plaintiff states to end DACA within two years. Nor does his order require the federal government to take any actions against current DACA recipients. 

The Biden Administration slammed Hanen’s ruling.

“We are deeply disappointed in today’s DACA ruling from the District Court in Southern Texas,” White House press secretary Karine Jean-Pierre said in a statement Wednesday night.

She added that as the Administration disagrees with the judge’s conclusion that DACA is unlawful, the White House “will continue to defend this critical policy from legal challenges. While we do so, consistent with the court’s order, [the Department of Homeland Security] will continue to process renewals for current DACA recipients and DHS may continue to accept DACA applications.”

The suing states—Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi—claimed they incur hundreds of millions of dollars in health care, education and other costs when immigrants are allowed to remain in the country illegally.

The office of the Texas Attorney General, which led the states’ lawsuit, did not immediately return reporters’ request for comment.

PHOTO: Defend DACA demonstrators, Los Angeles 2017

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