Immigrant advocates: In wake of latest ruling, only Congress can permanently protect DREAMERS 


July 22, 2021

Editor’s note: Dominique Espinoza, CHN’s Outreach and Engagement Specialist, contributed to this blog post. 

A federal judge in Texas late last week ruled that Deferred Action for Childhood Arrivals (DACA) is illegal, once again throwing into question the status of hundreds of thousands of people brought to the U.S. as children. 

The ruling from U.S. District Judge Andrew Hanen of Texas bars the government from approving applications from future DACA applicants. It does not, however, immediately affect nearly 650,000 who currently have DACA protection. 

Still: it highlights the legal uncertainty facing these individuals, many of whom do not even remember their original country because they left it at such an early age. And it is a stark reminder that the only solution for DACA recipients – and others such as Temporary Protected Status holders, farm workers, and other essential workers – is immigration reform in Congress. 

Judge Hansen described DACA as an unlawful overreach of the Obama Administration. However, in a separate opinion released the same day as the first, he said eliminating DACA for current recipients would be too disruptive and he stayed a major part of his original ruling. 

“Hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program,” Hanen wrote. “Given those interests, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly. This consideration, along with the government’s assertion that it is ready and willing to try to remedy the legal defects of the DACA program, indicates that equity will not be served by a complete and immediate cessation of DACA.” 

President Biden responded to the ruling by calling it “deeply disappointing” and saying the Department of Justice will appeal. 

“While the court’s order does not now affect current DACA recipients, this decision nonetheless relegates hundreds of thousands of young immigrants to an uncertain future,” Biden said in statement. 

A DACA recipient spoke during a sit-in for immigration reform in Washington, D.C., on April 28. A federal judge on Friday ordered the federal government to stop granting new DACA applications. Credit: Alejandro Alvarez/Sipa USA via REUTERS

Immigrant advocates responded forcefully, saying Congress must include immigration reform in the reconciliation measure currently being pieced together. 

“Enough is enough; it is time for our elected officials to do their job,” said Mary Meg McCarthy, Executive Director, National Immigrant Justice Center, in a statement. “Congress must use the reconciliation process to pass a legalization bill this year that provides an expedited and fully inclusive path to citizenship for the broadest possible population, including all DACA-eligible youth, Temporary Protected Status holders, farmworkers, and other essential workers. We look to Congress to ensure that no one is left behind.” 

Philip E. Wolgin, Acting Vice President of Immigration Policy at the Center for American Progress, said more than 60,000 DACA-eligible individuals, who have applied for the program but seen their applications delayed, will now be blocked from relief. 

And he said that the more than 600,000 DACA recipients are the parents of 254,000 U.S. citizen children. They contributed $8.8 billion in federal, state and local taxes in 2019. He said 200,000 DACA recipients – including an estimated 29,000 doctors, nurses, and technicians – have been on the front lines during the pandemic, protecting the health and safety of Americans and putting their own health and safety and that of their families at risk. “Judge Hanen’s decision only adds further uncertainty for these recipients, their families, and their communities,” he said. 

Last year, the U.S. Supreme Court blocked an attempt by the Trump Administration to shut down the DACA program altogether. In his ruling, Judge Hanen drew from both the majority and dissenting opinions in that ruling. He echoed a dissent written by Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, that said DACA was an “unlawful program.” 

“Justice Thomas noted that the majority’s failure to address DACA’s creation was ‘an effort to avoid a politically controversially but legally correct decision’ that would result in future ‘battles to be fought in this Court,'” Hanen wrote. “While the controversial issue may ultimately return to the Supreme Court, the battle Justice Thomas predicted currently resides here and it is not one this Court can avoid.” 

Interestingly, Judge Hanen was not the only one to foreshadow the possibility of DACA’s return to the nation’s highest court. 

Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund (MALDEF), a party to the case, agreed that the case is ripe for appeal. 

“The decision was plainly determined by the judge’s views of many years ago, and the decision fails to reconcile important recent developments in the law of standing and of presidential authority; it therefore presents numerous grounds for potentially successful appeal,” Saenz said in a statement. 

Nonetheless, a sobering and timely fact remains: the only way to fully protect current DACA recipients and future DACA recipients is to pass a law in Congress that fully protects all DACA recipients. 

“DACA is a hugely successful and transformative policy with overwhelming public support,” said Avideh Moussavian, Director of Federal Advocacy at the National Immigration Law Center in a statement. “But we have always known that a permanent solution is necessary. Immigrant youth have lived through years of uncertainty as a result of politically motivated attacks on DACA that put them at risk of being separated from their loved ones and being deported. No one should have to plan their lives in two-year increments or from one administration to the next.”