Federal judge declares DACA immigration program unlawful for second time

A federal judge for the second time found the DACA program unlawful, but held back from ordering the deportation of the nearly 600,000 people who remain in the country as “Dreamers.”

The Deferred Action for Childhood Arrivals program, first crafted with a 2012 memo under the Obama administration, was likewise found unlawful by federal District Court Judge Andrew Hanen in a similar ruling in 2021.

“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,” Hanen wrote in the 40-page ruling. 

“The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation.”

Given earlier challenges to the DACA program’s creation through a memo, the Department of Homeland Security (DHS) in 2022 underwent formal rulemaking to solidify the basis for the program.

But Hanen found while the government followed the law in undergoing notice and comment rulemaking, the new rule essentially carried the 2012 memo into a formal rule without addressing prior issues criticized by the court.

Last year the Fifth Circuit Court of Appeals, before remanding the case to Hanen, found broader issues with DACA, saying the policy was inconsistent with immigration processes laid out under the Immigration and Nationality Act.

Hanen pointed to that in his Wednesday ruling, noting that while the record underlying the new rule showed DACA to be beneficial to both recipients and the U.S. “DHS did nothing to change or resolve the substantive problems found by this court or the fifth circuit.”

Homeland Security Secretary Alejandro Mayorkas countered that conclusion Wednesday night.

“As the Secretary of Homeland Security who promulgated a final rule to preserve and fortify DACA last year, and as the former Director of U.S. Citizenship and Immigration Services (USCIS) who, in 2012, led the development and implementation of DACA, I am deeply disappointed by the ruling and uniquely qualified to say that DHS believes DACA is lawful and Constitutional,” he said in a statement.

The White House in a statement late Wednesday said it was also “deeply disappointed” in the ruling and vowed to continue defending the policy.

“As we have long maintained, we disagree with the District Court’s conclusion that DACA is unlawful, and will continue to defend this critical policy from legal challenges,” press secretary Karine Jean-Pierre said in a statement. “While we do so, consistent with the court’s order, DHS will continue to process renewals for current DACA recipients and DHS may continue to accept DACA applications.”

“We are committed to protecting all the Dreamers who have throughout their lives enriched our communities and our country, and we continue to call on Congress to provide permanent protection to the hundreds of thousands of Dreamers in the United States,” Jean-Pierre added.

The decision earned swift backlash from immigration advocates and spurred familiar calls for Congress to act.

“While expected, today’s court ruling is devastating. It impacts hundreds of thousands of immigrant youth and their loved ones, who have already endured years of uncertainty stemming from politicized attacks on DACA,”  Kica Matos, president of the National Immigration Law Center said in a statement.

“Congress has failed to pass a permanent legislative solution, and it is urgent that they act now. We cannot allow court rulings to continue to upend the lives of hundreds of thousands of immigrant youth whose home is here.”

The ruling comes months after a coalition of nine GOP-led states asked Hanen to end the federal program, referring to the program as “unlawful” and “unconstitutional.” 

The coalition also stated in its filing that the program should be prevented from accepting any new candidates and within a two-year period from approving renewal requests from existing Dreamers. 

While Hanen declined to do so in his latest ruling, Sen. Dick Durbin (D-Ill.) who has sponsored legislation to back the DACA program, said Hanen’s decisions have already blocked numerous others from seeking the same protections even as he’s protected the program for existing enrollees.

“Dreamers are protected from deportation for now, but due to lawsuits by extreme MAGA Republicans, their fates continue to hang in the balance and an untold number of Dreamers have been unable to enroll in the program for years,” Durbin said in a statement.

— Updated Sept. 14 at 9:41 a.m.