Federal Judge Declares DACA Program for ‘Dreamers’ Illegal for Second Time

The federal government’s revised DACA program has once again been declared illegal. The program prevents the deportation of hundreds of thousands of immigrants who were brought to the U.S. as children. 

U.S. District Judge Andrew Hanen in Texas reaffirmed an older ruling that the Deferred Action for Childhood Arrivals program is unconstitutional. But for now, the protections it offers hundreds of thousands of young immigrants in America known as “Dreamers” will be kept in place. His order also extended the current injunction that had been in place against DACA. 

Hanen agreed with Texas and eight other states suing to stop the program. The states have argued the Obama administration didn’t have the authority when it first created the program in 2012 because it circumvented Congress.

The Biden administration criticized the judge’s ruling. Homeland Security Secretary Alejandro Mayorkas called the ruling “disappointing,” saying it undermines the security and stability of more than half a million Dreamers.

The DACA program is now likely headed back to the U.S. Supreme Court, sending the program’s fate before the high court for a third time.

“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,” Hanen wrote in his 40-page ruling. “The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation … The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”

The U.S. District judge declined a request by the states to order the program’s end within two years. Hanen said his order does not require the federal government to take any actions against DACA recipients. 

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, or MALDEF, which is representing DACA recipients in the lawsuit, said it will ultimately be up to higher courts, including the Supreme Court, to rule on DACA’s legality.

“We look forward to continuing to defend the lawful and much-needed DACA program on review in higher courts,” Saenz said.

Judge Says Revised Program ‘Essentially the Same’ as Old Program 

In 2021, Hanen declared the program illegal, ruling it had not been subject to public notice and comment periods required under the federal Administrative Procedures Act.

In 2022, the 5th U.S. Circuit Court of Appeals in New Orleans upheld Hanen’s earlier ruling declaring DACA illegal but sent the case back to him to review changes made to the program by the Biden administration.

The Biden administration tried to satisfy Hanen’s concerns with a new version of DACA that took effect in October 2022 and was subject to public comments as part of a formal rule-making process.

Hanen ruled the updated version of DACA was still illegal as the Biden administration’s new version was essentially the same as the Obama administration’s original version.  

The federal judge also had previously ruled the states had standing to file their lawsuit because they had been harmed by the program.

The states have 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 states that sued are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.

There were 578,680 people enrolled in DACA at the end of March, according to U.S. Citizenship and Immigration Services.

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