Washington — Nine Republican-controlled states asked a federal judge in Texas on Tuesday to shut down the Deferred Action for Childhood Arrivals (DACA) program in its entirety over two years, a move that would prevent nearly 600,000 immigrants known as “Dreamers” from renewing their deportation protections and work permits.
The request from the coalition of states led by Texas represents the most pressing legal threat facing the Obama-era DACA program, which has continued to this day, although in a limited way, despite the years-old lawsuit challenging its legality and former President Donald Trump’s attempts to dismantle it.
For over a decade, DACA has allowed hundreds of thousands of immigrants lacking legal status who were brought to the U.S. as children to work and live in the country without fear of deportation. But the program does not provide them permanent residency, a status only Congress can grant. As of September 2022, 589,660 young adults were enrolled in DACA, federal statistics show.
At the center of the Republican state officials’ request on Tuesday are rules the Biden administration issued to place DACA on firmer legal grounds by transforming the program into a federal regulation. In October, those regulations replaced the Obama administration memo that first created DACA in 2012.
At the request of the same group of states, U.S. District Court Andrew Hanen declared the 2012 DACA memo unlawful in the summer of 2021. Hanen’s ruling, which was upheld by the 5th Circuit Court of Appeals last year, has blocked the government from approving first-time DACA applications. But it also has allowed current DACA recipients to continue renewing their enrollment in the program.
However, the states challenging DACA’s legality asked Hanen on Tuesday to find that the regulations issued last year are also unlawful and to block the government from approving renewal applications two years after a decision is made.
“The Final Rule—as the latest manifestation of the DACA program—is substantively unlawful for the same reasons as the DACA Memorandum,” the states said in their filing. “The Court should declare it unlawful and unconstitutional, vacate it in its entirety, and permanently enjoin its implementation (with a prudent transition for existing DACA recipients).”
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While the Biden administration regulations address one of the legal claims against DACA — that it should have been created through a regulation open to public comments — they will likely not change Hanen’s view that the policy itself violates U.S. law, since the regulations are identical to the 2012 memo he declared illegal.
It’s unclear, however, whether Hanen will agree to block DACA renewals in the future, since he has previously expressed concern about disrupting the lives of immigrants enrolled in the program. Hanen’s ruling is expected to be issued after April 6, the deadline for parties in the case to submit filings.
“Although we can’t predict what a ruling would look like, if Judge Hanen rules that DACA is unlawful, that decision is likely to be appealed to a higher court,” said Nina Perales, the vice president for litigation at the Mexican American Legal Defense and Educational Fund, which is defending the program’s legality alongside the Biden administration and New Jersey.
A ruling that shuts down DACA or declares the program illegal would likely be appealed to the 5th Circuit by the Biden administration, and the case could ultimately reach the Supreme Court.
The states that joined Texas’ bid to terminate DACA were Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi. They have argued that DACA is an illegal overreach of executive power, and that only Congress has the authority to grant unauthorized immigrants federal benefits.
The prospect of DACA’s demise could reignite discussions in Congress about legalizing those enrolled in the program, a proposal with broad bipartisan support among Americans. But efforts in Congress to pass such a proposal have collapsed repeatedly since 2001 amid broader partisan differences on U.S. immigration policy.
“Unfortunately, our Congress has been polarized and unable to pass any major immigration reform legislation — and I think that’s unlikely to happen in 2023,” said Steve Yale-Loehr, a Cornell University professor who studies the U.S. immigration system.
Yale-Loehr said the only way he sees the new Congress offering DACA beneficiaries permanent legal status is as part of a broader deal that includes measures limiting asylum along the U.S.-Mexico border to address concerns from Republican lawmakers, who hold a slim majority in the House.
Camila de Pierola, 25, who has been living in the U.S. since her family left Peru when she was a year old, said DACA’s termination would derail her dreams of becoming a physician. The Bay Area resident said she plans to attend medical school this fall, after earning her masters degree from UC Berkeley in May.
“How will I be able to financially support myself? It would be one big question mark. I’m sure there would be a lot of outrage as well,” said de Pierola, who’s been enrolled in DACA her entire adult life.
De Pierola noted that while some medical schools accept applicants enrolled in DACA, many do not accept students who don’t have legal immigration status. Residency programs also require students to show they are authorized to work in the U.S. legally.
Those enrolled in DACA had to pass background checks and satisfy several eligibility requirements, including proving that they arrived in the U.S. by age 16 and before June 2007, studied in a U.S. school or served in the military, and lacked any serious criminal record.
Two-thirds of the immigrants enrolled in DACA are between the ages of 21 and 30, and 81% were born in Mexico, according to government data. The other top countries of origin for DACA beneficiaries include El Salvador, Guatemala, Honduras, Peru and South Korea.
The Trump administration moved to terminate DACA in the fall of 2017, arguing that the policy was unlawful. But it was kept alive by federal courts, including the Supreme Court, which in 2020 ruled that the Trump administration had not properly rescinded the program.
Still, DACA has, for the most part, been closed to new, first-time applicants over the past five years. It was opened to new enrollees for several months after a court ruling in late 2020, but Hanen, the judge in Texas, barred the approval of first-time DACA requests in July 2021, and the program has been closed ever since.
Saúl Rascón Salazar, 21, a senior at Loyola Marymount University in Los Angeles, managed to apply for DACA just before the Trump administration tried to revoke it. He grew up in Phoenix after leaving Mexico in 2006, when he was 5 years old. While they have similar stories, one of Rascón Salazar’s younger brothers is not enrolled in DACA because it was closed to new applicants before he could satisfy the age eligibility.
“It has been exponentially more difficult for him,” Rascón Salazar said, noting his brother has struggled to access financial aid for college.
Saúl Rascón Salazar
Rascón Salazar said DACA has allowed him to work and get financial assistance to pay for college. His enrollment in the program has also motivated him to advocate on behalf of other immigrants. A court ruling that shuts down DACA, he said, “would be devastating.”
“It would be like a huge middle finger to everything that I’ve done,” Rascón Salazar added.
León Rodríguez, who oversaw DACA as director of U.S. Citizenship and Immigration Services during former President Barack Obama’s second term, said any unilateral actions the Biden administration could take in response to a ruling that terminates the program would be limited.
The administration could enact a new policy instructing immigration agents to refrain from deporting DACA beneficiaries, without providing them work permits, but Rodríguez said that would be “almost worthless,” since this population is not a priority for deportation anyhow, at least under President Biden.
“DACA was only ever meant to be a provisional solution,” Rodríguez said, “so in some ways, it took the pressure off to do a real solution, which is a path to citizenship.”
