Judge orders U.S. to close DACA program to new applicants, calling it illegal

A federal judge in Texas ordered the U.S. government on Friday to close the Deferred Action for Childhood Arrivals (DACA) program to new applicants, saying the Obama administration did not have the legal authority to grant deportation relief and work permits to undocumented immigrants brought to the U.S. as children.

Granting a request by Texas and other Republican-led states, U.S. District Court Judge Andrew Hanen required the Biden administration to stop approving new applications for DACA, blocking tens of thousands of immigrant teenagers and young adults from accessing the Obama-era legal protections.

Hanen, who was appointed to the federal bench by former President George W. Bush, did not order the government to strip the work permits and deportation protections from the more than 616,000 immigrants who are already enrolled in DACA. Current enrollees will still be eligible to renew their work permits and deportation deferrals.

An abrupt cancellation of DACA would not serve “equity,” Hanen argued, saying the government could address the program’s “legal defects” through forthcoming regulations.

“Hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program,” Hanen said in his order. “Given those interests, it is not equitable for a government program that has engendered such significant reliance to terminate suddenly.”

In addition to questioning DACA’s overall legality, Hanen ruled that the Obama administration violated federal administrative law when establishing the policy through a Department of Homeland Security (DHS) memo, as opposed to a regulation open to comments from the public.

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Hanen had previously said he believed DACA was unlawful in a 2018 legal opinion. In 2015, he blocked President Obama’s bid to create a similar deportation relief program for undocumented parents of green card holders and U.S. citizens.

Marilu Saldaña, a 29-year-old mother of two children who are U.S. citizens, said she “broke apart” when she heard about Hanen’s ruling. Saldaña said she applied for DACA in January and attended a biometric appointment for her application in the spring.

“I have not been able to stop crying,” Saldaña, who was brought to the U.S. as a 13-year-old, told CBS News. “It’s so frustrating because this was the year that I was going to go to college. I want to become a nurse. I feel like I’m going to have to wait again.”

Saldaña, a resident of Harrisburg, Pennsylvania, said she was also hoping to use her DACA enrollment to request permission to travel to Mexico to visit her mother, whom she has not seen in 16 years. As of Friday, she had not received an approval for her application.

“I feel like I have been fighting for this for so long,” Saldaña said. “We need something permanent.”

Advocates for immigrants said Hanen’s ruling underscored the urgency of Congress passing a bill that would allow DACA beneficiaries to apply for green cards. DACA allows recipients to work in the U.S. and shields them from deportation, but it does not allow them to gain permanent legal status.

“Congress must act in this moment,” said Karen Tumlin, who has represented DACA beneficiaries in federal court. “They need to ensure that there’s a path to citizenship not just for DACA recipients, but for essential workers and Temporary Protected Status holders. They don’t get an August recess. They need to get to work.” 

With the support of some Republicans, House Democrats in March passed a bill that would legalize DACA recipients and other “Dreamers,” but the measure has yet to garner 10 Republican votes in the Senate, which are needed to circumvent the filibuster rules.

More recently, Democrats in the evenly-divided Senate have also been exploring the possibility of legalizing Dreamers, farmworkers and Temporary Protected Status (TPS) recipients through the budget reconciliation process, which can be authorized by a simple majority.

Friday’s ruling is a major setback for prospective DACA applicants, their allies and the Biden administration, which had vowed to defend the Obama-era initiative. It is also the first time a federal court has declared DACA illegal since the initiative was established in 2012.

The Trump administration closed DACA to new applicants in 2017 and unsuccessfully tried to dismantle it in its entirety. But several federal courts, including the Supreme Court, found that its attempts to end the program violated administrative law.

DACA was reopened to new applications in December 2020 after a federal court order. As of late June, more than 81,000 first-time applications filed by immigrant teens and young adults were pending. Hanen on Friday banned the government from approving any pending first-time requests.

Hanen gave DHS three days to post a notice on its website saying that DACA was found to be illegal and that the government is prohibited from approving first-time requests.

Representatives for DHS and U.S. Citizenship and Immigration Services (USCIS), which administers DACA, did not respond to requests to comment on Hanen’s order.