By Andy J. Semotiuk | Forbes | SEP. 22, 2023 | Photo by Mandel Ngan
Not long ago, a federal judge once again declared the Deferred Action for Childhood Arrivals (DACA) program illegal. Despite this ruling, Judge Andrew Hanen of the United States District Court for the Southern District of Texas stopped short of immediately ending deportation protections and work permits for 580,000 current immigrant “Dreamers.” The decision was the latest development in the DACA story that involves the Biden administration's efforts to formalize DACA policy through federal regulation. At the request of Republican-led states, Judge Hanen ruled that the Biden administration's effort to codify DACA in this way was illegal. Notably, Hanen issued a similar ruling in 2021, declaring that the original Obama-era memo establishing DACA in 2012 was illegal.
Background On DACA
DACA, which took effect in 2012, extended deportation protections and employment authorization to hundreds of thousands of immigrants brought to the United States as children, either by crossing the border illegally or while overstaying their visas. To qualify for DACA relief, these individuals had to meet specific criteria, including having no serious criminal record, having arrived in the United States before June 2007 at age 16 or younger, and having graduated from a school high school in the United States or having served in the military.
The Core Issue
At the core of the dispute is the constitutionality of the method used to help these Dreamers. The legal issue centers on the separation of powers and the roles of the executive, legislative, and judicial aspects of government. Employing the concept of prosecutorial discretion, the Obama White House tried to provide temporary relief from deportation (so-called “deferred action”) and employment authorization to such Dreamers who traveled to America as minors accompanying their parents without proper immigration documentation. The DACA initiative stalled in court cases challenging the legality of it.
In theory, temporary prosecutorial discretion can go too far. It can lead to prosecutorial abdication of duty when prosecutors fail to enforce the law evenly against all who have violated it. When the executive branch tried to codify such a policy, the theory goes, it was wrongfully usurping the legislative power of Congress. Thus the resolution to the DACA dilemma rests squarely in the jurisdiction of the legislative chambers of government and only Congress can pass laws enabling the Dreamers to stay permanently. Unfortunately, however, such efforts have repeatedly stalled in Congress over the past two decades in widespread debates about immigration policy.
Nice States Oppose DACA In Court
Despite conceding a request by Texas and eight other states to declare the Biden administration's regulations illegal, Judge Hanen decided not to terminate DACA immediately. Instead, the decision affirms the ability of current DACA recipients to renew their two-year work permits and deportation protections. It's worth noting that he took a similar position in 2021, allowing the program to continue for current beneficiaries while barring new applicants. Last year, the 5th Circuit Court of Appeals also ruled that DACA was illegal. The Biden administration is expected to appeal Judge Hanen's recent ruling, paving the way for a possible showdown in the Supreme Court.
Previous Supreme Court Test Of DACA Failed
According to government data, as of the end of March, nearly 579,000 immigrants had applied for DACA, the majority residing in California, Texas, Illinois, and New York. In the fall of 2017, under the Trump administration, an effort was made to end DACA, as part of a broader initiative to reform legal and illegal immigration. But federal courts, including the Supreme Court, stayed the program, ruling in 2020 that the Trump administration did not follow proper procedures to end it.
Judge Hanen's initial ruling on the legality of DACA in 2021 resulted in a ban on new applicants while allowing existing DACA recipients to renew, a position he maintained in the recent order. He acknowledged the challenges faced by DACA recipients and their families and expressed sympathy for their situation. In his latest order, Judge Hanen noted the lack of “substantial differences” between the 2012 DACA policy and the Biden administration's 2022 regulations to formalize the program in federal regulation.
Homeland Secretary Mayorkas Doubles Down
In response to Judge Hanen's ruling, Homeland Security Secretary Alejandro Mayorkas contested the legal opinion, asserting that it undermines the security and stability of more than half a million Dreamers who have contributed to American communities. Mayorkas, who promulgated the final rule to preserve and strengthen DACA, expressed his disappointment with the ruling and underscored the Department of Homeland Security's belief in DACA's lawfulness and constitutionality.
White House Calls For Congress To Act
White House press secretary Karine Jean-Pierre affirmed the Biden administration's commitment to defending the DACA policy against legal challenges. She further emphasized the administration's ongoing call for Congress to provide permanent protection to the hundreds of thousands of Dreamers residing in the United States.
As the legal battle over DACA continues, the fate of these young immigrants, their contributions to American society, and the broader immigration debate itself hang in the balance. The issue will likely remain contentious and subject to ongoing legal and political scrutiny.
