A federal judge has struck down final regulations regarding the Deferred Action for Childhood Arrivals program, and the program itself may not survive.
The DACA program was established unilaterally in 2012 by an Obama Administration Memorandum. The program provides protection from deportation and eligibility for work authorization to undocumented individuals who entered the United States when they were children (“Dreamers”).
On July 16, 2021, Judge Andrew S. Hanen, appointed by President George W. Bush, enjoined and vacated the program, making an exception for individuals who had received DACA status before the date of the order. In November 2022, a panel of the U.S. Court of Appeals for the Fifth Circuit affirmed, but sent the case back to Judge Hanen to consider the impact of final regulations issued by the Biden Administration that had not yet taken effect.
In his ruling issued last week, Judge Hanen found that the provisions of the final regulations were “materially the same as [the provisions of] the 2012 DACA Memorandum.” Not surprisingly, he found that the regulations were invalid and extended his original injunction to cover the final regulations as well.
In response, the U.S. Citizenship and Immigration Services has issued an update. According to the update, “current grants of DACA and related Employment Authorization Documents (EADs) remain valid until they expire, unless individually terminated.” The USCIS says that it will continue to accept new applications for DACA status but will not process them. “Currently valid grants of DACA and related EADs will continue to be recognized as valid under the [final regulations]. This means that individuals with DACA and related EADs do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal.”
What is the status of DACA enforcement?
As indicated by the USCIS update and as permitted by Judge Hanen’s injunction, the status for current DACA recipients remains unchanged. They can remain in the United States, apply for work authorizations, and return from travel abroad. The USCIS will continue to accept and to adjudicate their renewal DACA requests and accompanying requests for employment and travel authorization.
However, with respect to new DACA applicants, the USCIS will continue to accept applications but cannot process them.
Will DACA survive?
Judge Hanen’s decisions, as well as the Fifth Circuit decision, raise serious concerns that DACA cannot not be established by executive action. Congressional action was arguably required.
It is not clear where we go from here. If the current case goes to the U.S. Supreme Court, and if the Court finds that the DACA program is invalid, the status of all DACA recipients and applicants would be placed in jeopardy. On the other hand, the Biden Administration is not likely to seek deportation of DACA recipients or individuals who would otherwise be eligible for DACA approval. But it is always possible that a future administration would take a harder line. And although Congress could save DACA, it is uncertain whether it would.
In short, the DACA program remains on life support until further notice.