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After judge blocks DACA, advocates call on Senate to pass American Dream and Promise Act

Following a federal judge's decision Friday to block new applications for Deferred Action for Childhood Arrivals, or DACA, advocates demanded Congress pass legislation to grant work permits and protect from deportation more than 644,000 people—including about 35,000 in Arizona alone. 

In his five-page opinion, U.S. District Judge Andrew S. Hanen ruled that the Obama-era program had been "illegally implemented," and that "the public interest of the nation is always served by the cessation of a program that was created in violation of law." Hanen blocked U.S. Department of Homeland Security officials from approving new applications, and issued a permanent injunction vacating the memo that created DACA in 2012. 

While DACA recipients came as children, on average around age 7, in the intervening years, they have grown up and begun to have children of their own.  In 2017, a report from the U.S. Citizenship and Immigration Service noted that the average age of DACA recipient was around 24-years-old, and now around 254,000 U.S. born children have parents who are DACA recipients, and about 1.5 million people live in households with at least one DACA recipient.

However, Hanen — a judge in the Southern District of Texas who was appointed by President George W. Bush in 2002 — did not undo current DACA protections, writing that "hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program," and "it is not equitable for a government program that has engendered such significant reliance to terminate suddenly." 

Advocacy groups immediately criticized Hanen's decision, calling it "mean-spirited" and part of a "concerted, sustained attack" against the nine-year-old program, and they called for the Senate to pass the American Dream and Promise Act, which has been on deck after it passed through the House of Representatives in March.

Biden vows Supreme Court appeal, calls for Congress to act

President Joe Biden called Hanen's decision "deeply disappointing." 

"While the court’s order does not now affect current DACA recipients, this decision nonetheless relegates hundreds of thousands of young immigrants to an uncertain future," Biden said in statement issued by the White House. "The Department of Justice intends to appeal this decision in order to preserve and fortify DACA. And, as the court recognized, the Department of Homeland Security plans to issue a proposed rule concerning DACA in the near future." 

"But only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve," Biden said. "I have repeatedly called on Congress to pass the American Dream and Promise Act, and I now renew that call with the greatest urgency. It is my fervent hope that through reconciliation or other means, Congress will finally provide security to all Dreamers, who have lived too long in fear." 

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In a statement, Tracy Renaud, acting director of U.S. Citizenship and Immigration Services, said that her agency will abide by the decision, and that "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, consistent with the court’s order." 

"USCIS is proud to play an important role in implementing DACA. DACA recipients are students, military service members, essential workers, and part of our communities in every way, shape, and form," said Renaud. "USCIS will comply with the court order, continue to implement the components of DACA that remain in place," she said, adding that the agency will work on rules "designed to strengthen and fortify DACA." 

Since its inception, ending DACA has become a objective of Republicans who sought to undo the program through a range of federal lawsuits, and during the Trump administration, through action by then-Attorney General Jeff Sessions and a rotating cast of Homeland Security Secretaries. 

President Barack Obama attempted to expand the program in November 2014 to cover more young people, and to also protect the parents of DACA recipients, known as the Deferred Action for Parents of Americans and Lawful Permanent Residents. However, Hanen blocked DAPA in a February 2015 decision, after multiple states sued, and ultimately the U.S. Supreme Court agreed, blocking the expansion in a divided decision. 

Under Trump, DHS rescinded the expansion, and in September 2017, attempted to phase out DACA,  triggering multiple lawsuits from advocacy groups. Three separate district courts blocked the change, and ultimately, the U.S. Supreme Court ruled in a 5-4 decision that the 2017 decision to end DACA was "arbitrary and capricious," and that when former DHS Secretary Elaine Duke—who replaced John Kelly who became the White House Chief of Staff—rescinded DACA, she violated the Administrative Procedure Act. 

Even as the other lawsuits moved forward, in 2018, seven states led by Republican Governors and Attorneys General filed a federal lawsuit against the program, arguing that because the 5th Circuit Court of Appeals had ruled against the expansion of DACA, and the program intended to protect parents of so-called "Dreamers" known as DAPA, the entire program should be rescinded. They also argued that because nearly 40,000 people used their DACA status to become legal permanent residents—and that among that group, about 1,000 were able to attain U.S. citizenship—the program's existence meant that Obama had "unilaterally conferred lawful presence and work authorization on otherwise unlawfully present aliens." 

Hanen ruled that the states, including Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia had suffered "irreparable injury" because of the existence of DACA, and that the federal government "has no legitimate interest in the continuation of an illegally implemented program." 

"Judge Hanen made it crystal clear over the past years that his predisposition against favorable exercises of prosecutorial discretion in the immigration context was strongly entrenched and his mind wasn’t about to be changed," said Allen Orr, president of the American Immigration Lawyers Association. "AILA urges the federal government to continue the fight, knowing that DACA is well within the President’s constitutionally granted authority. For the individuals, families and communities disappointed by today’s decision, AILA encourages them to stand strong." 

"Undoubtedly the administration will appeal and individuals who are potentially eligible for DACA can still begin gathering the necessary documentation and seek good counsel to give themselves the best chance for success," Orr said. 

"Although Judge Hanen stayed the devastating effects of his order by not stripping protections from current DACA recipients immediately, this is another blow to a program that everyone acknowledges provides critical protections," said Benjamin Johnson, AILA's executive director. 

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"In fact, this entire lawsuit has wasted time and resources that could have been far better spent, and the blame for this goes beyond Judge Hanen and the states that sued," Johnson said. "The blame lies squarely on the Senate which has not yet moved forward on the American Dream and Promise Act which would protect Dreamers and others with longstanding ties to our country who have played an integral role in our shared efforts to fight the pandemic and have been contributing to communities across the country for decades." 

"Judge Hanen’s July 16 decision to block new DACA applications — including the tens of thousands of initial cases mired in limbo due to crisis-level processing delays at USCIS — is mean-spirited and plain wrong," said CLINIC Executive Director Anna Gallagher. "The decision underscores yet again the urgency for Congress and the Biden administration to prioritize, protect and respect the human rights and dignity of undocumented immigrants in this country. Those directly impacted, their loved ones, and the country have spoken again and again that DACA recipients, Temporary Protected Status holders and other undocumented immigrants need permanent stability, security and a pathway to citizenship. Their lives, dreams and contributions to our collective society are not temporary — our laws and policy must reflect that, now." 

"DACA was fought for— and won—by immigrant youth who demanded dignity and justice for immigrant communities. The program has been successful by any measure: hundreds of thousands of young people started new careers, grew their families, and built communities," said Daniel Tully, a lawyer with Justice Action Center. "Today’s order is the result of a concerted, sustained attack by anti-immigrant extremists in Texas and elsewhere. These attorneys general—and their enablers in Congress—should be blamed for stalling this program for tens of thousands of young people who have already applied for the deportation protection and work authorization DACA provides. Each of them will continue to live in limbo because of this order," Tully said. 

The decision comes after U.S. Citizenship and Immigration Services, which manages DACA applications, told Congress that at the end of May officials had only completed 1,900 first-time DACA applications since the program reopened in December.

Between January and March, almost 50,000 people sent first-time DACA applications to U.S. Citizenship and Immigration Services, but just 763 — or 1.5% — were approved. Now, there’s a backlog of over 55,000 initial DACA applications, USCIS data shows.

In a letter last week to USCIS, more than 20 Democratic Senators led by Nevada Democratic Senator Catherine Cortez Masto, wrote a letter to USCIS about delays in processing DACA applications. "These delays—a legacy of the Trump Administration’s anti-immigrant policies and the COVID-19 pandemic—continue to negatively impact immigrants, our communities, and our nation as a whole. As the Biden Administration and USCIS work to rebuild and strengthen our nation’s immigration system, we hope that reducing processing delays will continue to be a priority," the Senators wrote. 

USCIS's acting director wrote back, telling the Senators that her agency was "working hard to process applications in a timely manner," CBS News reported

"However, we acknowledge that several factors have caused some DACA requests to be processed outside our stated processing time goals, including unexpected technical issues, training or retraining time, and delays for biometrics appointments," Renaud wrote.

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A rally for DACA in Tucson on September 6, 2017.

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