Federal Court Strikes Down DACA – What We Know So Far On July 16, 2021, a Texas judge struck down the Deferred Action for Childhood Arrivals (DACA) program in a ruling that forced U.S. Citizenship and Immigration Services (“USCIS”) to stop granting initial DACA applications. What do we know thus far? Currently, nearly 616,000 people currently benefit from DACA. Because the court ruling requires USCIS to stop granting initial applications, it appears that individuals who recently submitted initial applications will not receive approvals from USCIS. USCIS may continue to accept applications but the agency is barred from approving them and issuing work permits and deferred action. Details of the Federal Court Case The plaintiffs in the cases were several states, including Texas, who argued that undocumented immigrants are a burden on state resources, agencies, and programs. They also argued that undocumented immigrants take jobs away from U.S. citizens and lawfully present non-citizens. In his decision, Judge Hanen held that the Obama administration had used the incorrect process in creating DACA and that the program itself violated the law. Specifically, the Texas court reasoned that DACA violated the Administrative Procedure Act (APA) by not following through the necessary steps and procedures to make a program legally sufficient. Other federal courts in New York and California directly conflict with the Texas ruling. In those cases, the judge ruled that DACA was a lawful exercise of a president’s executive authority and, moreover, a president’s authority to grant deferred action. Despite the ruling, Judge Hanen’s decision does not prevent the government from creating a different type of protection for DACA applicants. Because Judge Hanen deemed DACA to be a violation of the APA, he offered DHS the opportunity to find another way to pass a similar program through different measures. The Practical Impact – Initial Applications, Renewals, Advance Parole We believe this also applies to those who filed their DACA case before the July 16 ruling came down. Within 48 hours, USCIS informed new applicants that it was cancelling their biometrics (fingerprinting) appointments. First time applicants who have taken biometrics will probably see USCIS hold their case in pause. There is some good news — those who had DACA at the time of the ruling may still benefit from the program. The Texas court decision did not deny current holders the chance to file renewals to continue while the case goes through the appeals process. The decision should not affect those DACA recipients who are seeking advance parole to travel abroad. On July 19, 2021, Acting Director Tracy Renaud made the following statement: “Pursuant to the July 16, 2021 Order issued by the U.S. District Court for the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting initial DACA requests. “All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole….” What May Follow? DHS may appeal the district court’s decision. However, any appeal would go to the Fifth Circuit Court of Appeals. We know from past experience involving Deferred Action for Parents of Americans (DAPA), a similar program designed by the Obama Administration for undocumented parents of U.S. citizens, that the Fifth Circuit tends to rule against such programs. In fact, Judge Hanen struck DAPA down, with that decision being upheld by the Fifth Circuit in 2015. Ultimately, without congressional lawmaking or a more robust administrative program that passes any legal arguments under the APA, “Dreamers” will continue to have their lives in limbo. For now, DACA holders, applicants, and supporters sit and wait as DHS contemplates its next course of action.
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Michael G. Ibrahim, Esq.
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