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A federal judge has just declared DACA illegal. Here's what that means.

On Friday, a federal judge in Texas blocked an Obama-era program that protected undocumented immigrants who came to the United States as children from deportation, stopped the program's ability to accept new applicants, and resumed the lives of more than 600,000 people upset.

In his 77-page opinion, District Court Judge Andrew Hanen concluded that the Deferred Action for Childhood Arrivals (DACA) program is unlawful because it violates the Administrative Procedure Act, which governs federal legislation by using the normal " Notification and comment process ”bypasses the adoption of new rules.

Hanen's decision doesn't immediately affect the 616,030 people often known as DREAMers who are currently protected under DACA – but it does mean the Department of Homeland Security can no longer approve new DACA applications or grant applicants the protection that DACA provides.

Just arrived: A federal judge in Texas has blocked the DACA program for the future – it has no effect on current beneficiaries for now (the judge is putting this issue on hold until appeals are expected), but it is blocking the DHS from making new ones Applications to be approved

– Zoe Tillman (@ZoeTillman) July 16, 2021

Hanen also emphasized on Friday that "neither this order nor the accompanying injunction obliges the DHS or the Ministry of Justice to take immigration, deportation or criminal action against DACA recipients, applicants or other persons who would otherwise not take it."

DACA not only protects undocumented immigrants who came to the United States as children from deportation, but also enables them to work in the United States. The DACA protection can be extended and is valid for two years.

According to the Mexican American Legal Defense and Educational Fund (MALDEF), a coalition of nine states led by Texas filed the lawsuit against the legality of DACA in 2018.

There are currently around 81,000 first-time DACA applications pending with U.S. citizenship and immigration authorities by the end of June, according to CBS News. However, following Hanen's decision and pending appeals, all of these applicants are pending.

As Vox's Ian Millhiser explained in December, the Trump administration had previously restricted DACA in a previous, failed attempt to fully end it, and new applications rose after it was fully reinstated in December – despite USCIS responding to the new influx of applicants processed slowly. which leads to the current backlog.

The Texas verdict has already been condemned by the White House, immigrant rights groups and the Democrats in Congress.

Terrible decision by a federal judge in Texas on DACA.

The dreams of hundreds of thousands of young people contributing to the American economy are being put on hold for no good reason.

Congress must embark on a path to citizenship this year. We can hardly wait.

– Joaquin Castro (@JoaquinCastrox) July 16, 2021

In a statement Friday, the Home Is Here Coalition, which includes immigrant advocacy groups such as United We Dream, described Hanen's decision as "cruel and vicious".

"This decision is a reminder that DACA was never enough to protect immigrant communities who remain at risk of deportation," the group said.

The Biden government has already promised to appeal Friday's decision, reiterating that DHS "plans to issue a proposed rule regarding DACA in the near future."

President Joe Biden also called for a "permanent solution" for DREAMers in a statement released by the White House on Saturday.

"I have repeatedly urged Congress to pass the American Dream and Promise Act and I am now urgently renewing that call," said Biden. "I sincerely hope that through reconciliation or otherwise, Congress finally offers security to all dreamers who have lived in fear for too long."

If the American Dream and Promise Act, passed in the House of Representatives earlier this year, went into effect, it would grant "conditional permanent residence" status to multiple categories of immigrants, including DREAMers and temporary protection beneficiaries, and set them on their way to Bringing citizenship.

The existence of DACA has always been meager

For many, the DACA ruling on Friday does not come as a surprise. Hanen, a George W. Bush-appointed officer who has been described as possibly "the most immigrant judge in the United States," made his feelings clear about DACA long before the verdict on Friday. In 2018 he opined that "if the nation really wants a DACA program, it is up to Congress to say so" – and even aside from Hanen's special sentiments, DACA has been virtually attacked since its inception in 2012.


Judge Hanen issued his long-awaited decision to crush the DACA and ordered the Biden government to stop approving new applications. This is the terrible result that we have unfortunately been expecting for months.

– Aaron Reichlin-Melnick (@ReichlinMelnick) July 16, 2021

As former Vox senior correspondent Dara Lind has explained, DACA stems from the failure of Congress in 2010 to pass the DREAM Act, which gives immigrants who entered the United States illegally as children a path to citizenship would have opened.

Despite the failure in the Senate, the DREAM Act gave these immigrants – DREAMers – a name, and after his defeat in 2010, President Barack Obama tried to address their plight through the executive branch.

According to Lind,

Obama claimed that the immigrants eligible under this legalization would not be deported anyway, as his administration targeted “high priority” immigrants (such as those with criminal records) rather than “minor” immigrants who had lived quietly for years in the USA. But federal immigration officials were still deporting "low priority" immigrants, including DREAMer.

In the summer of 2012, the administration decided to allow DREAMers to apply for deportation protection themselves instead of relying on immigration and customs to protect immigrants by refusing to be deported.

In June 2012, President Obama announced the Deferred Action for Childhood Arrivals program. It enabled young illegal immigrants who meet certain criteria to apply to the federal government for a commitment for “deferred measures” – that is, the obligation not to initiate deportation proceedings – for two years. Successful applicants also received work permits.

Later attempts to expand the program during the Obama administration were blocked, however, and President Donald Trump launched another attack on DACA after taking office.

Video by Dara Lind, Liz Scheltens and Silvia Philbrick

The Trump administration decided to end DACA entirely in September 2017, but it violated the Administrative Procedure Act – the same act that Hanen called on Friday as a violation of DACA itself.

In a June 2020 ruling by the Department of Homeland Security v Regents, University of California, the Supreme Court concluded that the Trump administration's decision to end DACA did not serve the interests of the more than 600,000 people affected by the change and therefore "arbitrary and capricious" and a violation of the APA. Still, the court left the door open for later attempts to end the program.

Following that decision, the Trump administration also decided to stop accepting new DACA applicants and impose other restrictions on the program, although those measures were lifted by a federal judge in New York last year.

With the back and forth between the courts and the Trump administration, DACA recipients who have spent their entire adult lives in the United States have long been in an unsafe position – which many lawmakers quickly pointed out after the ruling on Friday.

No surprise, just a painful reminder that we no longer have to rely on temporary immigration solutions.

Congress must seize the moment and every opportunity to finally give millions of undocumented immigrants a path to legalization. Https://

– Senator Bob Menendez (@SenatorMenendez) July 16, 2021

"No surprise, just a painful reminder that we no longer have to rely on temporary immigration solutions," Senator Bob Menendez (D-NJ) said in a tweet Friday. "Congress must seize the moment and every opportunity to finally open a path to legalization for millions of undocumented immigrants."

Congress tried to find a solution for DREAMers but failed

Menendez is right: Although the DACA itself has been controversial for years in relation to executive power, it would be relatively easy for Congress to provide a permanent legislative solution for the more than 600,000 dreamers currently part of the DACA program (according to Laut According to the Migration Policy Institute, there are more than 1.3 million people in the US who are potentially eligible for DACA as of 2020).

However, previous bills failed to clear the Senate, despite the overwhelming popularity of giving DREAMers a route to citizenship.

According to a June 2020 poll by the Pew Research Center, 74 percent of US adults – including a majority of Republicans and those who lean on Republicans – support “permanent legal status for immigrants who entered the United States illegally as children grant ".

Despite this, the DREAM Act 2010 failed thanks to the filibuster, even though it passed the House of Representatives and won the majority in the Senate. And in 2018, four possible DACA fixes all died in the Senate, though three of the four also received at least 50 votes.

Most recently, the American Dream and Promise Act was passed in two separate sessions in the House of Representatives – first in 2019 and most recently in March of this year – but has yet to be voted on in the Senate and would certainly not survive the filibuster as a separate bill.

A permanent solution for DREAMer could be included in the next reconciliation package

At the moment, an appeal against Hanen's decision on Friday seems like the next front in the battle for DACA. The Biden government has already promised to do so, which means the case is likely to go to the 5th District Court of Appeals.

Groups involved in the case, including the Mexican American Legal Defense and Education Fund, were optimistic about future appointments.

“The decision was clearly determined by the views of the judge from many years ago,” said MALDEF President and General Counsel Thomas A. Saenz in a statement Friday, “and the decision brings important current developments in the law of office and presidential authority not in line; it therefore offers numerous reasons for a potentially successful appointment. "

However, it is by no means certain that DACA will do better in the appeal process. CNN's Priscilla Alvarez and Tierney Sneed point out that the 5th District is known to be "an extremely conservative court of appeal," while the current US Supreme Court has a conservative majority of 6: 3, including "three judges who approved the program in described as unlawful by a dissenting opinion ”. an earlier case. "

There are other options, however: in response to a Biden memo from day one, Biden's DHS has been telling DHS for months that it has been working to support DACA with a new rule to "maintain and strengthen" the program that it continues could provide a solid legal foundation for the future.

People hold signs and a woman raises her fist during a rally in support of the Supreme Court ruling in favor of the Deferred Action for Childhood Arrivals (DACA) program on June 18, 2020 in San Diego, California.

SANDY HUFFAKER / AFP via Getty Images

The DHS reaffirmed this commitment on Friday in a statement on the Hanen decision: "DHS continues to focus on protecting DACA, and we will involve the public in a rulemaking process to maintain and strengthen DACA," said DHS Secretary Alejandro Mayorkas.

However, the most promising avenue for DACA proponents could turn out to be Congress, despite Filibuster's continued existence. As the Senate prepares to push ahead with a major second reconciliation package, many Democrats have suggested that immigration reform – including a path to citizenship for DREAMers among other things – could make the cut.

In his statement on Saturday, Biden nodded at the idea, noting that "it is my fervent hope that Congress, through reconciliation or otherwise, will finally provide security to all DREAMERS who have lived in fear for too long".

Under reconciliation, a law in the form of a budget equalization law can pass the Senate with only 50 votes and without fear of the filibuster – but there are restrictions. As Vox's Dylan Scott explained in January, "many things" could potentially be included, but they all need to have some (sometimes weak) capacity to impact federal spending and revenue.

Senate Democrats – whose 50-seat majority, with Vice President Kamala Harris as a tie, gives them exactly enough votes to pass a reconciliation bill down the party line – have used the reconciliation process once this year to make $ 1.9 trillion American rescue plan to be adopted. Another, even larger, package – which focuses on a laundry list of priorities that have been removed from the pending bipartisan infrastructure bill – appears to be in preparation.

Significantly, the inclusion of a path to citizenship seems to have the support of Senator Joe Manchin (D-WV), a frequent objector in the Senate Democratic faction. A permanent solution for DREAMers, however, has yet to survive the Senate MP to be included in an upcoming reconciliation package, and that seems like an open question.

The role of the MP in the reconciliation process, according to Scott, is to determine whether or not the budgetary impact of reconciliation measures, such as a possible path to citizenship, is "random" – and current regulations require that ancillary provisions be made out of the bill.

Despite that fact, some senators – like California Democrat Alex Padilla – are optimistic, and at least one member of the House of Representatives, Jesús "Chuy" García (D-IL), has said that immigration regulations are a must for the next reconciliation package.

"Solid and fair budget balancing must include a path to citizenship for immigrants," García said in a statement earlier this month. "We must seize this historic opportunity to bring compassion and dignity to our immigration system and reassurance that we have the legal status that millions of immigrants and their families deserve."

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