With courts poised to chop DACA, advocates pursue other immigration reforms
U.S. Circuit Judge Andrew Hanen held a status conference Friday at the Houston federal courthouse after a Fifth Circuit panel agreed last week with his determination that the 2012 Deferred Action for Childhood Arrivals (DACA) policy was implemented in violation of federal law.
Texas and several other Republican-led states sued in 2018 in a bid to end DACA, which allows undocumented residents who arrived as children to obtain renewable two-year deferrals of their deportations so they can receive work permits and driver’s licenses. The states say DACA drains their finances because they pay medical, social services and education costs for DACA recipients who would otherwise face removal to their home countries.
At issue in Friday’s conference: The Biden administration has introduced a new version of DACA set to take effect Oct. 31.
William Thompson, a Texas assistant attorney general, questioned if the new rule would disrupt an injunction Hanen imposed in July 2021 barring the Department of Homeland Security from approving new DACA applications but letting it grant renewals to those already enrolled.
Department of Justice attorney James Walker agreed DHS would not be approving any new DACA applications under the new regime.
“Well, that takes some of the pressure off,” said Hanen, a George W. Bush appointee.
In his 2021 order, Hanen determined former President Barack Obama had violated procedural requirements of the Administrative Procedure Act by not publishing the memo that created DACA in the Federal Register for the public to weigh in before implementing it.
Biden solicited public comments for the new version but that is unlikely to save DACA from being struck down by the courts.
Both Hanen and the Fifth Circuit found Obama had also violated the substantive requirements of the APA because DACA goes beyond the “intricate statutory scheme” Congress created in the Immigration and Nationality Act for deciding which undocumented immigrants are allowed to stay in the U.S.
Hanen said he carefully read both the original and new versions of DACA.
“I read DHS saying it’s the same rule. They are tweaked here and there. [Texas] is saying, ‘I’m bound by law and precedent to say it’s substantively fatal,’” Hanen stated.
Walker, the DOJ attorney, spoke up.
“The government continues to disagree with the court’s ruling on DACA’s lawfulness.”
“Well, I understand that,” Hanen said, chuckling.
Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund (MALDEF), represents 22 DACA recipients who intervened in the case to try to save the program.
“The DACA recipients don’t think they are so similar the outcome is foretold,” she said of the old and new versions of DACA. She urged Hanen to first examine the administrative record — all the documents associated with the new DACA regulation —before making up his mind.
“I don’t have the administrative record,” Hanen said. “Is someone going to file that with the court?”
DOJ attorney Walker said the administration would get it to Hanen within three or four weeks.
Hanen told Texas he would let it amend its lawsuit to address the new rule. But first the Fifth Circuit must issue its mandate, a procedural requirement that transfers jurisdiction from an appellate court back to a district court.
Hanen is well-versed on DACA. He blocked the Obama administration from implementing an expanded version with a 2015 order after a 26-state coalition led by Texas sued.
Texas claims in the current litigation that by starting DACA, Obama violated “the president’s constitutional duty to ‘take care that the laws be faithfully executed.’”
“In the eight years I’ve dealt with this I haven’t ruled on the constitutional issues. If I find it’s unlawful substantively, would I have to rule on constitutional issues?” Hanen asked Thompson, the Texas assistant attorney general, during Friday’s conference.
“Yes, because it would be a live claim,” Thompson said.
“I was afraid you would say that, because that would get into evidence,” Hanen replied.
At a rally after the conference, a woman with a bullhorn led a call-and-response accompanied by drummers.
“The people want to know who we are. So we tell them: We are the immigrants, the mighty, mighty immigrants. We want to stay. This is our home,” she chanted.
Around 600,000 people from almost 150 countries are enrolled in DACA, though most are from Mexico. They were brought to the U.S. illegally as children or become undocumented with their parents when their visas expired.
To qualify, one must have been under 31 as of June 15, 2012, when the program started, came to the U.S. when they were under 16 and continuously lived here since June 15, 2007. They also must be enrolled in school or high school graduates, or have obtained a GED, or been dishonorably discharged from the Coast Guard or armed forces and cannot be convicted of any serious crimes.
Perales, the MALDEF attorney, spoke of DACA’s limitations at the rally.
“The DACA initiative is temporary. It was always meant to be temporary. … Two federal courts have already ruled that DACA cannot be implemented by the executive, meaning the president. Two federal courts have ruled that it is only Congress that can put the DACA policy in place,” Perales said into a microphone.
“So the main takeaway from the case as its winds its way through the courts is that we are getting consistent federal rulings that only Congress can put DACA into place and it is Congress that must act,” she added.
But there are different solutions on the table and dissension among DACA supporters about which one is best.
Jung Woo Kim, a DACA recipient and intervenor in the lawsuit, is co-director of the National Korean American Service and Education Consortium, an advocacy group for Asian-American immigrants. He has lived in the U.S. for 23 years.
He said he supports companion bills in the House and Senate, sponsored by Democratic lawmakers from California, called the Renewing Immigration Provisions of the Immigration Act of 1929, which would allow immigrants to qualify for a green card, i.e. permanent resident status, if they have lived in the U.S. continuously for seven years and are of good moral character.
Kim said another bill introduced in both chambers of Congress called the American Dream and Promise Act would be too narrow, providing a pathway to citizenship for only young undocumented immigrants.