A federal policy that protects from deportation hundreds of thousands of immigrants brought to the U.S. as children turned 11 on Thursday. But the program's future remains uncertain because of a six-year court battle.
Republican-led states have challenged the Deferred Action for Childhood Arrivals program in court, aiming to terminate it.
U.S. District Judge Andrew Hanen for the Southern District of Texas heard arguments on June 1 in Texas vs. United States. In 2021, Hanen ruled that DACA was illegal because it had not been subjected to the public notice and comment period that is required under the federal Administrative Procedure Act.
In 2022, the Department of Homeland Security issued a new rule to fortify the program, using the public notice and comment period. Hanen is reviewing the legality of that rule.
There are about 580,000 current recipients who have been able to renew their DACA status every two years, which allows them to work legally and protects them from deportation.
“As we mark this 11-year anniversary of DACA, it’s important to remember the strength, resilience and power of immigrant communities who fought for the protections from deportation and work permits that DACA provides,” wrote Bruna Bouhid-Sollod, senior communications and political director of United We Dream Action, in an email to the press.
“For over a decade, DACA has given immigrant youth the freedom to go to college, get a driver's license, provide for themselves and their family, and in some cases even leave the country and return home through advance parole.”
What is happening in federal court?
Although immigration lawyers have said Hanen can rule immediately, they said a decision would likely take a few months.
“It is important to note that Judge Hanen is not allowed to lift the stay on renewals for current DACA recipients. 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 in early June.
What is ahead for the program?
If Hanen rules against the legality of DACA, as he did in 2021, the case is expected to return to the 5th U.S. Circuit Court of Appeals. Immigration advocates said a hearing there would not take place until 2024. And if the appeals court agrees with Hanen’s finding, the three-judge panel’s ruling could include an end to the current DACA renewals.
Whatever the appeals court decision is, it will likely be appealed to the U.S. Supreme Court, which could take the case for the 2023-24 session. A decision from that would not come until spring 2025, according to immigration advocates.
Who is suing to stop DACA?
In 2018, Texas and 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 [former President Barack] 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?
Obama, frustrated with congressional inaction on the Dream Act, created DACA by executive order in 2012. Had it 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 that was introduced in 2001.
Some DACA recipients arrived legally, but their families later overstayed their visas; others arrived by crossing the U.S.-Mexico border without authorization. They are now in their mid-20s to late 30s, and they come from around the world.
The highest numbers of 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 requirements, an applicant had to be enrolled in high school, have a General Educational Development certificate or diploma, or have served in the U.S. military. Those with criminal histories – a felony, a serious misdemeanor or three misdemeanor convictions — 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?
President Joe Biden in a statement said Thursday that DACA recipients “contribute their immense skills and talents to better our communities.”
Biden also said, “Congress can provide permanent and lasting stability for these young people and their families,” and he urged it to do so.
On Thursday, House Democrats reintroduced the American Dream and Promise Act, also known as the Dream Act - the legislation that would create a path to citizenship for DACA recipients.