The Biden administration on Thursday asked a federal judge in Texas to stop short of ordering the full termination of the Deferred Action for Childhood Arrivals (DACA) immigration policy if he finds it unlawful, a last-minute attempt to limit a looming ruling that could dictate the fate of nearly 600,000 “Dreamers.”
The Justice Department’s filing late Thursday was part of the last set of filings ordered by U.S. District Judge Andrew Hanen, who is reviewing a request by a coalition of Republican-led states led by Texas to terminate DACA over a two-year period. With all filings submitted, Hanen could issue a decision at any time.
Since it was created by the Obama administration in 2012, DACA has allowed immigrants who were brought to the U.S. as children but who lack a legal immigration status to apply for two-year government work permits and deportation protections. As of the end of 2022, there were 580,310 immigrants enrolled in DACA.
Despite repeated bipartisan attempts over the past two decades, Congress has failed to give these immigrants, colloquially known as “Dreamers,” permanent legal status and a path to American citizenship — an action with broad public support.
In 2020, the Supreme Court prevented the Trump administration from ending DACA on technical grounds. But the decade-old program has faced legal challenges ever since, and its fate could be decided in the near future.
In 2021, Hanen ordered the Biden administration to stop enrolling new immigrants in DACA, agreeing with the Republican-led states’ argument that the program was illegal. That ruling was upheld last year by the 5th Circuit Court of Appeals, which also concluded that DACA violated federal immigration laws.
Despite their findings, both Hanen and the 5th Circuit decided to keep DACA intact for current recipients, saying that an abrupt end to the program would disrupt the lives of hundreds of thousands of enrollees.
Hanen is again reviewing the question of DACA’s legality because the Biden administration last year published a rule that transformed the program, originally established through a memo, into a federal regulation. While the effort addressed Hanen’s concerns that the Obama administration did not solicit public feedback on DACA before enacting it, the regulations are identical to the 2012 memo.
In its filing Thursday, the Biden administration said Hanen should uphold the legality of the new rules. But it conceded that the 5th Circuit had already declared DACA unlawful.
If Hanen finds the DACA regulations unlawful, the Justice Department said he should only strike down parts of the program, such as the work permit provision, and give the Department of Homeland Security (DHS) time to make changes to the policy.
Any ruling in favor of the Republican-led states, the Justice Department argued, should only apply in Texas since only that state “has attempted to show” it is harmed financially by DACA.
In the event that Hanen moves to void the regulations, he should pause his order to ensure DACA recipients are able to continue renewing their deportation protections and work permits while the government appeals the ruling, the Justice Department said. The administration also asked Hanen to let DHS impose a wind-down period for DACA, instead of imposing one himself, if a ruling against the program is upheld by higher courts.
Stephen Yale-Loehr, a Cornell University professor who specializes in U.S. immigration law, said Thursday’s filing was an attempt by the Biden administration to “minimize” the scope of Hanen’s ruling. “Based on his past rulings, Judge Hanen is likely to rule that the DACA program is unlawful,” he added.
Yale-Loehr said Hanen could agree to pause his ruling pending an appeal. The Biden administration, he noted, would likely appeal a ruling against DACA to the 5th Circuit and ultimately the Supreme Court.
“The bottom line is that this still has a long way to go before there’s a final resolution,” Yale-Loehr said. “I think the earliest that we may get a final decision by the Supreme Court would be June of 2024, and even that may be premature.”
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