RACHEL TREISMAN AND VANESSA ROMO
One day after a federal district judge in Texas ruled against the Deferred Action for Childhood Arrivals program, President Biden said the Department of Justice intends to appeal the decision.
In a statement, Biden said the ruling was “deeply disappointing” and “relegates hundreds of thousands of young immigrants to an uncertain future.” He called on Congress to ensure a path to citizenship for them.
The ruling struck a blow to the Obama-era policy that has protected more than 800,000 young undocumented immigrants from deportation since 2012.
The largely expected decision leaves the fate of thousands of the program’s beneficiaries, colloquially known as DREAMers, in the hands of Congress, the Biden administration and a Supreme Court where conservatives hold a 6-3 majority.
U.S. District Judge Andrew Hanen ruled in favor of nine conservative-led states, including Texas, and blocked the Biden administration from accepting new DACA applicants — saying the program is not legal.
However, the ruling allows for immigrants currently protected by the program to keep their status and allow DACA renewals while the case goes through the appeals process.
Texas Attorney General Ken Paxton hailed the ruling as a victory, announcing on Twitter that he had again defeated the Biden administration on illegal immigration.
The Biden administration has pledged to protect DACA or put something similar in place.
“This consideration, along with the Government’s assertion that it is ready and willing to try to remedy the legal defects of the DACA program, indicates that equity will not be served by a complete and immediate cessation of DACA,” Hanen wrote in the ruling.
Supporters of DACA are expected to appeal the decision to the Fifth Circuit
“This ruling is wrong and is subject to appeal,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project said in a statement, adding that “Dreamers’ futures shouldn’t be in the hands of the courts.”
“It is absolutely urgent that Congress acts now through the budget reconciliation process to provide Dreamers and other undocumented members of our communities with reliable status and a pathway to citizenship,” Jadwat said.
Avideh Moussavian, director of federal advocacy at the National Immigration Law Center, told NPR that the decision will have a tremendous impact on tens of thousands of young people who were applying for DACA for the first time and have been waiting for adjudication.
Hanen’s ruling, Moussavian said, “is just another reminder that hundreds of thousands of people who have been able to get DACA … deserve more than the instability and uncertainty of a court date to a court date.” They need a definitive and permanent solution than can only come from a new immigration bill, she said, noting that the American public has repeatedly expressed support for laws providing a pathway to citizenship.
Moussavian added: “And right now is absolutely the time for Congress to take action that is long overdue in terms of passing legislation that would provide a pathway to citizenship, not just for the recipients, but also for the millions of other people who are living in this country and who deserve the same type of stability.”
The Mexican American Legal Defense and Educational Fund, which helps represent the 22 DACA recipients serving as defendants in the case, had prepared for such an outcome, writing in a March memo that such a ruling would likely not bring the program to an immediate halt.
“Even if the court rules invalid the 2012 memo that established DACA, all parties in the case agree that DACA should continue in the near future while the court considers the appropriate remedy,” it said.
Friday’s decision all but ensures that the matter will be settled either by the U.S. Supreme Court or Congress.
Saved on a technicality in 2020
DACA was implemented in 2012, under the Obama administration. Without providing a pathway to citizenship, it enables certain young immigrants who are in the country illegally and were brought to the U.S. as children to live and work in the country for two-year periods that are subject to renewal.
To be eligible, individuals must have arrived in the U.S. before the age of 16, continuously resided in the country since June 2007, and been under 30 at the time of the program’s implementation. They must be either a current student, high school graduate, GED holder or honorably discharged veteran of the U.S. armed forces, and must not “pose a threat to national security of public safety.”
The policy counted more than 636,000 active recipients at the end of last year and has enjoyed considerable bipartisan support: A Pew Research Center survey found in 2020 that 74% of Americans favor a law that would grant permanent legal status to undocumented immigrants who came to the U.S. as children.
Roberto G. Gonzales, a professor at Harvard’s Graduate School of Education who has spent the last two decades studying undocumented youth, spoke to NPR’s Code Switch last June about the quantifiable positive impacts DACA has had on recipients, from access to health care to the ability to financially support family members to improved mental health.
“The evidence is clear and indisputable,” he said. “DACA has made a tremendous impact on the lives of hundreds of thousands of young people over the last eight years.”
Still, the program had been at the center of a prolonged legal battle almost since its inception. President Donald Trump, who had said he would find a way to protect the DREAMers without offering specifics, announced in 2017 that his administration would terminate the program, sparking challenges in U.S. district courts in several states and Washington, D.C.
The Supreme Court sided with the DREAMers when it ruled on the case in 2020, blocking the Trump administration’s plan to dismantle the program for reasons that had more to do with process than substance.
Writing for the majority, Chief Justice John Roberts said administration officials did not provide detailed justifications for canceling DACA, rendering their decision “arbitrary and capricious.”
“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “The wisdom of those decisions is none of our concern. Here we address only whether the Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.'”
The court’s decision was celebrated by DREAMers and immigrants’rights advocates as a short-term victory, easing the immediate threat of deportation for thousands of people but leaving the door open for a president to cancel the program through proper procedure.
Many Democratic lawmakers at the state and federal level renewed their calls for a permanent legislative solution, with then-presumptive Democratic presidential nominee Joe Biden saying he would work to make DACA permanent if elected. As president, Biden has unveiled a plan to protect the DREAMers, but so far it appears not to have enough support in Congress to pass.
Many feared that Trump would move successfully to dismantle DACA if reelected. While legal experts generally agreed he did not have enough time left to do so in the remainder of his term, administration officials continued with efforts to roll back the program even after the Supreme Court ruling, by refusing to accept new applicants and cutting renewal permits from two years to one.
A federal judge reversed those limits in December 2020, ordering the terms of the program to be restored to what they were prior to the attempted cancellation in 2017.
Texas case challenged program’s legality
Meanwhile, a more direct challenge to DACA was underway in the U.S. District Court for the Southern District of Texas.
In May 2018 — six years after the program’s creation — Texas and six other states filed a lawsuit challenging the legality of DACA itself.
The case was transferred to U.S. District Andrew Hanen, a nominee of President George W. Bush who is well known for blocking two other Obama-era immigration initiatives in 2015: one that would have expanded DACA to included 330,000 more people and one that sought to offer similar protections to undocumented immigrant parents. (A split 4-4 Supreme Court ruling in 2016 left the lower court’s injunction in effect.)
Ten states, led by Texas Attorney General Ken Paxton, asked Hanen in 2018 for a preliminary injunction to force the government to reject DACA renewals and stop accepting new applications.
Attorneys for Texas said that the state was being harmed by a drain on resources by DACA recipients, a claim that immigration advocates argued would be hard to prove as DREAMers contribute to local economies by living, working, paying taxes and raising families in the U.S.
Ruling at the end of August, Hanen said DACA was likely unlawful because it overstepped the authority of the executive branch. But he declined to issue a preliminary injunction, saying the plaintiffs waited too long to challenge it in court and comparing the situation to putting “toothpaste back in the tube” or unscrambling an egg.
“Here, the egg has been scrambled,” Hanen wrote. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”
Some two years later, following the Supreme Court ruling and a series of motions and arguments in the Texas case, Hanen directed the involved parties to bring their claims before him again.
At a hearing in December 2020, attorneys representing the states argued that DACA violates the Constitution by circumventing Congress’ authority on immigration laws, and that it should have been instituted through federal regulations rather than a memorandum.
They also said the program has increased states’ costs associated with health care, education and law enforcement, with Texas spending an estimated $250 million each year on social services DACA recipients.
The defendants — a group of DACA recipients represented by the Mexican American Legal Defense and Educational Fund, or MALDEF, as well as the New Jersey Attorney General’s Office — argued that Obama had the authority to implement the program and said the states had not demonstrated injury from DACA.
They added that only Texas had attempted to prove harm based on the costs associated with the program and that as such, a nationwide injunction would be inappropriate. Defendants argued the states did not have standing to challenge DACA, and pushed for the lawsuit to be dismissed.
Both sides asked Hanen to resolve the case without a trial. He did not issue a ruling at the time.
Changing landscape in 2021
The court held another hearing in late March, at which point Hanen set an early April deadline for both parties to provide more information. Much had changed in Washington, D.C., since their last meeting in court, as MALDEF notes.
For one, there’s a new occupant of the Oval Office. On the day of his inauguration in January, Biden issued a memorandum directing the Department of Homeland Security to take action to “preserve and fortify” DACA.
And shortly before the March hearing, Homeland Security Secretary Alejandro Mayorkas announced that the agency would issue a “notice of proposed rulemaking” in keeping with the president’s memorandum.
“It is an important step, but only the passage of legislation can give full protection and a path to citizenship to the Dreamers who know the U.S. as their home,” he said.
The House of Representatives took a step in this direction with the passage of the American Dream and Promise Act last month. The act, which also passed the House in 2019, would create a process for DREAMers to earn permanent resident status and eventual citizenship. It heads next to the Senate, where its fate is uncertain.
It already has the support of Biden, who called it a “critical first step in reforming our immigration system.”
“Dreamers and TPS holders, for whom the United States is home, are part of our national fabric, and make vital contributions to communities across the country every day,” he said in a statement. “Many have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy — yet they are forced to live with fear and uncertainty because of their immigration status.”
Immigration rights advocates are urging the Biden administration to protect undocumented immigrants by taking executive action in the face of a politically divided Congress. To many, that would mean more than just preserving DACA.
“Protecting DACA is the floor, not the ceiling, of what a Biden-Harris administration must do,” Greisa Martinez Rosas, the executive director of United We Dream and a DACA recipient, said last year.
After the Supreme Court ruling last year, many DREAMers and immigration advocates spoke to NPR about what they saw as a clear need for a more permanent solution. Tereza Lee, the inspiration behind the original DREAM Act first introduced in 2001 but never passed, said more certainty for DREAMers could come only in the form of legislation.
“The DACA is not the answer to all,” she said. “It’s always been fragile. It was a compromise of a compromise. And until there is a real immigration reform for all 11 million undocumented people, DACA is never going to be enough.”