People gather for a rally on the 10th anniversary of the Deferred Action for Childhood Arrivals program in Battery Park on June 15, 2022, in New York City. (Michael M. Santiago / Getty Images)
WASHINGTON — A federal judge Wednesday declared illegal the Biden administration’s revised version of a program that protects hundreds of thousands of people brought into the country as children from deportation, and U.S. Senate Democrats, advocates and the White House on Thursday decried the decision.
“I think that Congress should act, but it has been incapable of doing it,” U.S. Sen. Bob Menendez, Democrat of New Jersey, said in an interview with States Newsroom.
Menendez, who chairs the U.S. Senate Committee on Foreign Relations, said that the president should use his “parole powers if Congress can’t get their act together.”
The ruling does not put an end to the Deferred Action for Childhood Arrival program, and keeps it in place, allowing the current 600,000 recipients to continue renewing their applications. But no new additional applications are allowed to be processed by the U.S. Department of Homeland Security.
“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” U.S. District Court Judge Andrew Hanen wrote in his 40-page decision, agreeing with Texas and eight other states that the program is unlawful.
The case is expected to be eventually ruled on by the U.S. Supreme Court, and if accepted by the justices, likely will be heard and decided next year.
White House press secretary Karine Jean-Pierre said in a statement that the Biden administration disagrees with Hanen’s decision that the White House did not have the authority to create DACA.
Jean-Pierre said the administration “will continue to defend this critical policy from legal challenges.” She added that the Biden administration is urging Congress to pass legislation to provide a legal pathway to citizenship for DACA recipients, often called “Dreamers,” based on never-passed legislation in Congress called the Dream Act.
Biden has used several parole programs to give certain nationals from Cuba, Haiti, Venezuela, Nicaragua, Afghanistan and Ukraine temporary status to work and live in the U.S.
Up to Congress
In Hanen’s ruling, he argued that the fate of DACA should not be up to the executive or judicial branch but lies with Congress.
“Congress, for any number of reasons, has decided not to pass DACA-like legislation,” he argues.
The Dream Act, which would give DACA recipients permanent legal status, has failed to garner enough votes to pass the 60-vote threshold in the Senate. With a slim Democratic majority in the Senate, and GOP control in the House, any legislative movement for Dreamers is stalled.
Sen. Dick Durbin, who first introduced the Dream Act and has spent more than 20 years trying to get it passed, told States Newsroom that he was “bitterly disappointed” with the decision, but not surprised.
“We’re going to try to at least initiate a new effort among members to discuss this and other issues,” the Illinois Democrat said.
Democratic Sens. Jacky Rosen of Nevada and Ben Ray Luján of New Mexico wrote on X, formerly known as Twitter, that they were deeply disappointed in the decision.
“[T]here is absolutely no time to waste,” Luján said. “Congress and the administration need to act. Dreamers need permanent protections.”
Hanen argued that Congress’ inaction does not give DHS the freedom to “take any action it wants.”
“The Executive branch cannot usurp the power bestowed to Congress by the Constitution — even to fill a void,” Hanen said.
DHS Secretary Alejandro Mayorkas, who worked on the initial DACA program in 2012, said he and the agency believe they have the authority to codify the program into a final rule.
“[T]his ruling does undermine the security and stability of more than half a million Dreamers who have contributed to our communities,” Mayorkas said in a statement. “The United States is the only home they have ever known.”
Hanen initially ruled that the Obama-era DACA program was unlawful because the administration did not follow proper rulemaking procedure by using a memorandum to create a program.
A three-judge panel at the U.S. Court of Appeals for the 5th Circuit upheld that decision, but sent the case back to Hanen after the Biden administration promulgated a final rule to codify the program.
In his ruling, Hanen was not satisfied with the new final rule from DHS, and argued that the final rule is the same as the 2012 memo, so “it is subject to this Court’s (and the Fifth Court’s) prior rulings.”
“There are no material differences between the two programs,” Hanen wrote. “As such, the Final rule suffers from the same legal impediments.”
Mayorkas said that the U.S. Citizenship and Immigration Services will continue to process DACA renewals, and said the agency is prepared to work with Congress to create a permanent pathway to citizenship for Dreamers.
It’s estimated that there are about 94,500 pending applications for the DACA program, according to USCIS data.
This challenge to DACA stems from the Trump administration. In 2017, former President Donald Trump tried to end the program.
The Supreme Court in June 2020 deemed those actions from Trump unlawful and USCIS was then required to begin accepting applicants, but under the Trump administration the agency didn’t do so until December of that year.
Then, nine states led a lawsuit against the program, arguing that it was burdensome to the states and that the executive branch overreached its power in creating DACA. The lawsuit was led by Texas, along with Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia.
Those defending the program included the state of New Jersey, the Mexican American Legal Defense and Educational Fund and the U.S. Department of Justice. They presented their oral arguments before Hanen on June 1.
The attorney general of New Jersey, Matthew Platkin, said in a statement that he was disappointed with the ruling but grateful that it does not end the program.
He said the decision is “egregiously wrong and inconsistent with decades of history.”
Thomas Saenz, MALDEF president and general counsel, said in a statement that it was clear that the stay of the program “recognizes the benefits to the United States as a whole from allowing these heroic individuals to continue to contribute to our economy and society.”
“We must all remain mindful that this lengthy lawsuit, and the precarious state of uncertainty in which it places DACA recipients, is largely the result of Congress indolently refusing to enact legislation — which has the overwhelming bipartisan support of the nation’s voters — to preserve the DACA recipients as permanent members and contributors in U.S. society,” Saenz said.
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