Federal judge declares DACA program illegal, but halts only new applications

WASHINGTON — A federal judge in Texas on Friday declared illegal the federal program that has allowed nearly 800,000 young people brought to the United States illegally as children avoid deportation and remain in the country.

U.S. District Court Judge Andrew Hanen in Brownsville, Texas, said the Obama administration failed to follow federal administrative rules in launching the Deferred Action for Childhood Arrivals program in 2012. But he put the effect of most of his ruling on hold while the case is appealed.

“It is not equitable for a government program that has engendered such significant reliance to terminate suddenly,” Hanen said. As a result, the status of people currently in the program does not change, and they can continue to seek renewal of the DACA status.

But he said the Department of Homeland Security cannot grant any new applications from people who have never been in the program.

Despite its limited short-term impact, the ruling is likely to put new pressure on Congress and the Biden administration to come up with a permanent fix if they want to continue the program.

On his first day in office, President Joe Biden directed the Homeland Security secretary “to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

Under the program, children of undocumented immigrants are allowed to remain here if they were under 16 when their parents brought them to the United States and if they arrived by 2007. Government figures show that over 90 percent of DACA participants have a job. Nearly half are in school. Many don’t speak the language or know the culture of their home countries.

The U.S. Supreme Court last year ruled that the Trump administration acted illegally when it tried to shut the program down. The 5-4 ruling said the government did not offer a sufficient reason for wanting to terminate it.

“How many times do Dreamers and their families have to be subjected to the whims of legal uncertainty and politicians dead-set on deporting these everyday Americans? Enough. Judge Hanen’s ruling is a signal to Congress to act immediately and deliver a path to citizenship for Dreamers,” said Sergio Gonzales, executive director of Immigration Hub, an immigrant advocacy group.

Friday’s ruling came in a lawsuit brought by Texas and eight other red states. They said the Obama administration violated the Administrative Procedures Act, known as APA, when it failed to first publish the proposal and to seek public comment before attempting to enforce it.

Judge Hanen agreed. “DHS violated the APA with the creation of DACA and its continued operation,” he said.

The Department of Homeland Security and the Justice Department had no immediate comment on Friday’s ruling, but the government is sure to appeal the decision. The case could wind up before the Supreme Court, which is now more conservative than it was when kept the DACA program alive a year ago.

RAICES, a nonprofit immigrant legal services group in Texas, tweeted that the judge’s “rash” decision “reiterates the immediate need for Congress AND the Biden administration to keep their promise and create a pathway to citizenship for all undocumented people in the U.S..”

Todd Schulte, president of the immigrant advocacy group, called the ruling “deeply disappointing.”

“Today makes absolutely clear: only a permanent legislative solution passed by Congress will eliminate the fear and uncertainty that DACA recipients have been forced to live with for years,” he said in a statement.

Dareh Gregorian contributed.

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