Editor’s note: This article has been updated.
A federal judge ruled Friday that the current version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children can continue, at least temporarily.
U.S. District Judge Andrew Hanen — who last year declared the Deferred Action for Childhood Arrivals program illegal — said that the policy, which is set to proceed under new regulations at the end of the month, can continue with limitations that he previously set. Those limitations say there can be no new applicants for DACA and that those who are already in the program can continue to be in it and renew their application.
Hanen ordered attorneys in the case to provide more information and said he expects additional legal arguments related to the new rule, but there was no timetable set for future hearings. It’s also unclear when Hanen will give his final decision on the case, which is expected to end up at the U.S. Supreme Court.
The current version of DACA, which the Biden administration created to improve its chances of surviving legal scrutiny, is set to take effect Oct. 31.
The case went back to Hanen after the Circuit Court of Appeals in New Orleans said last week that he should take another look at DACA following revisions adopted by the Biden administration.
Before the hearing Friday morning, a group of about 30 community activists gathered in support of DACA at a park next to the federal courthouse. They held up signs that said, “Judge Hanen Do the Right Thing Protect DACA” and “Immigrants Are Welcomed.” They chanted as many of them marched into the courthouse to attend the hearing.
Hanen last year declared DACA illegal after Texas and eight other Republican-leaning states filed a lawsuit claiming they are harmed financially, incurring hundreds of millions of dollars in health care, education and other costs when immigrants are allowed to remain in the country illegally. They also argued the White House overstepped its authority by granting immigration benefits that are for Congress to decide.
“Only Congress has the ability to write our nation’s immigration laws,” Texas Attorney General Ken Paxton said Thursday in a statement.
Hanen found DACA had not been subjected to public notice and comment periods required under the federal Administrative Procedures Act. But he left the Obama-era program intact for those already benefiting from it, pending the appeal. There were 611,270 people enrolled in DACA at the end of March.
A three-judge panel of the New Orleans-based appeals court upheld Hanen’s initial finding but sent the case back to Hanen so he could review the impact of the federal government’s new DACA regulation.
The new rule’s 453 pages are largely technical and represent little substantive change from the 2012 memo that created DACA, but it was subject to public comments as part of a formal rule-making process.
But even if Hanen were to issue a positive ruling on the new DACA regulation, the judge might still decide the program is illegal because it was not created by Congress, Perales said.
“Which is why so many right now are calling on Congress to act,” she said.
After last week’s appeals court ruling, President Joe Biden and advocacy groups renewed their calls for Congress to pass permanent protections for “Dreamers,” which is what people protected by DACA are commonly called. Congress has failed multiple times to pass proposals called the DREAM Act to protect DACA recipients.
Whatever Hanen decides, DACA is expected to go to the Supreme Court for a third time. In 2016, the Supreme Court deadlocked 4-4 over an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the high court ruled 5-4 that the Trump administration improperly ended DACA, allowing it to stay in place.