On July 16, a federal judge in Texas vacated the Deferred Action for Childhood Arrivals program. Judge Andrew Hanen ruled that the DACA was unlawfully created by the Executive Branch in violation of the Administrative Procedure Act and was inconsistent with provisions of the comprehensive immigration system enacted by Congress. Although the U.S. Department of Homeland Security may refrain from deporting current DACA recipients as an exercise of “prosecutorial discretion,” the DHS may not approve new DACA applications or grant DACA recipient status to any applicants. And even current DACA recipients may no longer receive work or return-travel authorizations.

The Biden Administration has said that it will appeal.

Background

The DACA, created by the Obama Administration in 2012 after legislative efforts failed, provides protections and benefits to undocumented children who typically came to the United States illegally at an early age with their parents. Commonly referred to as “Dreamers,” DACA recipients are provided important protections and benefits, including relief from deportation, eligibility to apply for work authorization, and authorization to leave and return to the United States. (Undocumented individuals are generally barred from returning to the United States for a period of three or 10 years if a waiver is not obtained.)

In June 2020, the U.S. Supreme Court struck down the Trump Administration’s plan to end the DACA program. According to the Supreme Court, the plan was arbitrary and capricious in violation of the Administrative Procedure Act. However, the Court did say that the DHS had the authority to rescind the program, provided that it did so properly.

The Texas litigation that resulted in last week’s decision challenged the DACA program itself. The plaintiffs were the States of Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina, Texas, and West Virginia.

Regarding the DHS’s choice not to deport “Dreamers,” Judge Hanen agreed that the DHS had properly exercised its prosecutorial discretion. On the other hand, he found that the DHS was not authorized to approve new DACA applications. Moreover, the benefits of work authorization and return travel authorization could be authorized only by Congress, he said, not by the Executive Branch.

Impact

Judge Hanen’s decision could have serious negative consequences for current DACA recipients, for those who wish to become DACA recipients, and for employers. However, the judge has stayed (suspended) his decision with respect to current DACA recipients pending appeal by the Biden Administration.

Individuals who were already DACA recipients as of July 16, 2021, may retain their current protections and benefits. They may also continue to file for, and be approved for, renewal. However, new applications cannot be accepted or approved by the DHS unless Judge Hanen’s decision is reversed on appeal.

Judge Hanen also said that his injunction is not intended to preclude the DHS or the U.S. Department of Justice from taking action “against any DACA recipient, applicant or any other individual that it would not otherwise take.”

What now?

The impact of the decision on new DACA applicants and the employers seeking to hire them is obvious -- the decision prohibits the DHS from approving their applications. But even current DACA recipients are in a vulnerable situation based on the court’s ruling that the Executive Branch does not have the authority to provide them with work authorization and return travel authorization.

Even if Judge Hanen’s decision is upheld on appeal, the Biden Administration is unlikely to seek to deport DACA recipients or individuals who would be eligible for DACA approval absent the court’s decision. But without work or return travel authorizations, it is questionable how much of a benefit that would be.

Of course, Congress can step in and save the program, but, after almost a decade of waiting, it is uncertain whether Congress will act.