The future of a federal policy that protects from deportation hundreds of thousands of immigrants brought to the U.S. as children is in federal court.
U.S. District Judge Andrew Hanen heard arguments Thursday in Texas v. United States, a case brought by nine Republican-led states aimed at halting the Deferred Action for Childhood Arrivals program.
He is to decide on the legality of the DACA rule issued by the Department of Homeland Security in 2022 that tried to fortify the program and correct Hanen’s earlier objection to DACA.
In 2021, he found the program to be illegal because it had not gone through the public notice and comment period required under the federal Administrative Procedures Act.
DACA provides work authorization and deportation protection to nearly 600,000 people.
What happens now?
Although immigration lawyers say Hanen could rule immediately, they say a decision will likely take a few months.
Because of a federal appeals court order, Hanen cannot prevent existing DACA recipients from renewing their status. DACA recipients must renew their status in the program every two years.
“Therefore, renewals are expected to remain in place until and if a higher court ends them,” Todd Schulte, president of FWD.us, an immigration and criminal justice organization, wrote in an email to the media.
What is ahead for the program?
If Hanen rules that DACA is illegal, as he did in 2021, the case is expected to return to the three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals. Immigration advocates said that a hearing in the 5th Circuit was not likely until 2024.
Whatever the appeals court decision is, it will likely be appealed to the U.S. Supreme Court, where the justices could take the case for the 2023-24 session. A decision from the Supreme Court likely would not come until spring 2025, immigration lawyers say.
It is not clear whether the 5th Circuit ruling would permit the renewals to continue in the meantime.
How did we get here?
In 2018, Texas and eight 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 illegally.
They also argued that only Congress has the authority to grant immigration benefits. Besides Texas, the states suing are Alabama, Arkansas, Nebraska, Kansas, Mississippi, Louisiana, South Carolina and West Virginia.
Then-Texas Attorney General Ken Paxton said in a statement about the current case that he “successfully led the charge in defeating Obama’s DACA program already. I am hopeful that our judicial system will once again deliver a victory for American sovereignty and for proper checks and balances against the executive branch.”
Who are DACA holders?
Then-President Barack Obama, frustrated with congressional inaction on the Dream Act, created DACA by executive order in 2012. If passed, the Dream Act would have allowed a pathway to U.S. citizenship for DACA holders as well as Dreamers, a set of people who can’t apply for DACA protection because of age restrictions but call themselves Dreamers after the legislation introduced in 2001.
Some DACA recipients arrived legally, but their families later overstayed their visas; others arrived as children by crossing without authorization the border between Mexico and the U.S. The majority are now in their early 20s to late 30s, and they come from around the world.
Most DACA recipients live in California, New York and Texas. According to immigration experts, the average DACA recipient has lived in the U.S. for more than 20 years.
To meet the DACA program’s requirement, an applicant had to be enrolled in high school, have a G.E.D. or a diploma, or have served in the U.S. military. Those with a criminal history — a felony, a serious misdemeanor or three misdemeanors — are not eligible for DACA. They also had to be younger than 31 as of June 15, 2012, have moved to the U.S. before they turned 16, and have lived continuously in the U.S. since June 15, 2007.
Because of the current court order, U.S. Citizenship and Immigration Services is not accepting new applications. DACA does not provide a pathway to permanent residence or U.S. citizenship.
Who is in favor of DACA recipients?
On October 2022, a coalition of dozens of corporations, including Apple, Amazon, Google and Microsoft, sent a letter to Republicans and Democrats in Congress urging a bipartisan solution for the immigrants enrolled in DACA.
They said ending the program or not having a permanent solution for DACA recipients would harm communities and businesses that would lose people who have become productive members of the U.S. economy.
“When the last DACA recipient’s work permit expires, the U.S. will have lost more than 500,000 jobs, and the U.S. economy will lose as much as $11.7 billion annually — or roughly $1 billion monthly — in wages from previously employed DACA recipients. (To put this into perspective, in Texas alone, 400 health care workers and 300 teachers will be forced out of their jobs each month.),” the letter says.