U.S. District Judge Andrew Hanen — who last year declared the Deferred Action for Childhood Arrivals program illegal — said that the policy, which is set to proceed under new regulations at the end of the month, can continue with limitations that he previously set.
Those limitations say there can be no new applicants for DACA and that those who are already in the program can continue to be in it and renew their applications.
During a court hearing Friday, Hanen ordered attorneys for the federal government to provide more information on the new rule and said he expects additional legal arguments related to it, but there was no timetable set for future hearings. It’s also unclear when Hanen will give his final decision on the case, which is expected to end up at the U.S. Supreme Court.
“The legality of the new DACA regulation … is now the task before this court,” said Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund, or MALDEF, who is representing DACA recipients.
Karina Ruiz De Diaz, one of the DACA recipients being represented by MALDEF, said she was relieved Hanen kept the program in place but upset the judge declined to open it up to thousands of new applicants who need its protections.
Ruiz was part of a group of more than 50 community activists and DACA recipients who gathered before and after the hearing in support of the program at a park next to the federal courthouse. They held up signs that said, “Judge Hanen Do the Right Thing Protect DACA” and “Immigrants Are Welcomed.”
The current version of DACA, which the Biden administration created to improve its chances of surviving legal scrutiny, is set to take effect Oct. 31.
The case went back to Hanen after the 5th U.S. Circuit Court of Appeals in New Orleans said last week he should take another look at DACA following revisions adopted by the Biden administration.
Hanen last year declared DACA illegal after Texas and eight other Republican-leaning states filed a lawsuit claiming they are harmed financially, incurring hundreds of millions of dollars in health care, education and other costs, when immigrants are allowed to remain in the country illegally. They also argued that the White House overstepped its authority by granting immigration benefits that are for Congress to decide.
“Only Congress has the ability to write our nation’s immigration laws,” Texas Attorney General Ken Paxton said Thursday.
Hanen found DACA had not been subjected to public notice and comment periods required under the federal Administrative Procedures Act. But he left the Obama-era program intact for those already benefiting from it, pending the appeal. There were 611,270 people enrolled in DACA at the end of March.
A three-judge panel of the New Orleans-based appeals court upheld Hanen’s initial finding but sent the case back to Hanen so he could review the impact of the federal government’s new DACA regulation.
During Friday’s hearing, Hanen seemed hesitant about tackling the constitutionality of the DACA program with any ruling he would make and said he wanted all parties involved to initially focus on issues related to the federal Administrative Procedures Act in reviewing the new regulation.
Perales said the uncertainty about DACA’s fate in the courts should be another signal to Congress that it needs to act to provide permanent protections.
After last week’s appeals court ruling, President Joe Biden and advocacy groups renewed their calls for Congress to pass permanent protections for “Dreamers,” which is what people protected by DACA are commonly called. Congress has failed multiple times to pass proposals called the DREAM Act to protect DACA recipients.
Whatever Hanen decides, DACA is expected to go to the Supreme Court for a third time. In 2016, the Supreme Court deadlocked 4-4 over an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the high court ruled 5-4 that the Trump administration improperly ended DACA, allowing it to stay in place.
Voice of America