On Sept. 13, a federal judge again declared the Deferred Action for Childhood Arrivals program, or DACA, illegal. The ruling does not end the program but extends an already years-long legal battle over its existence.
Current DACA recipients are still eligible to reapply for the legal protections that allow them to stay and work in the United States. New applications remain halted, stuck in limbo since 2021. The ruling will likely be appealed to the U.S. Supreme Court.
Pratheepan (Deep) Gulasekaram, a professor of constitutional law and immigration law at CU Boulder, studies the constitutional rights of noncitizens and has written multiple books on immigration policy. Gulasekaram offers his take on what this latest ruling means for DACA recipients and the state of immigration in the United States.
Tell us a little about DACA’S background. How did we get to this point?
DACA was announced by the Obama administration back in 2012. At that time, Barack Obama’s administration was already creating enforcement priorities for immigration, which are guidelines for Immigrations and Customs Enforcement. Those guidelines classified people who were young, who were students, or who had no felony background as the lowest priority for deportation.
Despite the publication of these priorities, many people who fell under low-priority were still caught up in ICE’s enforcement dragnet. So, in 2012, Obama announced the creation of the DACA program. DACA created a set of eligibility criteria that, if met, allowed young undocumented people to apply for “deferred action,” shielding them from deportation for two years. Further, recipients could apply to renew their DACA grant after that initial period.
Importantly, at that time, DACA was created as a memorandum from the Secretary of Homeland Security. Something that wasn’t specifically listed in the memorandum but is immensely important to the importance of DACA and current litigation about the program's legality, is work authorization. Once someone has deferred action, they can apply to receive authorization to work during the time they maintain DACA.
Texas and other states sued to get this latest ruling. What are their main concerns?
DACA was not challenged for quite some time, really until near the beginning of President Donald Trump’s administration. The state of Texas, along with several other states with Republican governors or attorneys general, challenged the program in a federal district court in Texas. That court was specifically chosen for the judge, U.S. District Judge Andrew Hanen, because he had previously ruled on—and rejected—an extension of DACA that Obama tried to enact several years before.
Hanen ruled that DACA was illegal in part because of the way it was created—as a memorandum from the Department of Homeland Security and not a more involved process that complies with procedural rules and philosophy that usually accompany action from a federal agency. Despite finding DACA unlawful and preventing DHS from processing new applications, however, Hanen’s ruling permitted those already with DACA to keep it and to seek renewal with DHS.
Fast forward to 2021, when incoming President Joe Biden asked his Secretary of Homeland Security to shore up DACA by enacting through formal agency rulemaking. At that time, Hanen’s ruling was on appeal with the 5th Circuit Court of Appeals. Noting that Biden’s DHS had codified DACA through the formal rulemaking process, the 5th Circuit kicked the case back down to Hanen to see if the codification of DACA altered the legality of the program. Hanen ruled that it did not. And so issued the ruling we have from Sept. 13, where he concludes the program is still illegal.
Importantly, however, just as with his initial ruling, the most recent decision does not strip current DACA recipients of the program’s protections and appears to still allow DACA renewals. And, as with the prior ruling, the federal government cannot process any new applications.
What happens now?
The Biden administration will no doubt appeal Hanen’s ruling up to higher federal courts. Anybody who knows anything about immigration and the 5th Circuit Court of Appeals—one of the most, if not the most, reactionary and “conservative” courts in the nation—expects with near certainty that it will very quickly approve of and affirm Hanen’s ruling.
In the past, the 5th Circuit has found extensions of the DACA program illegal, and more generally, has upheld enforcement-heavy immigration policies. In fact, given the 5th Circuit’s track record, a panel of judges might take it upon themselves to go even further than Hanen’s ruling. For example, they could agree that DACA is illegal and add that current recipients cannot continue to defer deportation. No matter what happens, after the 5th Circuit ruling, the White House will likely very quickly appeal to the Supreme Court.
Of course, the makeup of the Supreme Court looks very different than it did when DACA started. Justices Ruth Bader Ginsberg, Stephen Breyer and Anthony Kennedy are no longer on the court. It’s much more likely the court has at least five votes, and perhaps six, to agree that DACA is illegal, if the justices agree to take the case.
Then the question becomes: What do we tell young undocumented people who have been here for years, who’ve studied and earned degrees at schools in the United States, who know of no other country but this one, and who were—for the last decade—gainfully employed or serving in our military? That’s hundreds of thousands of people who currently have DACA status.
How big of an issue do you expect this to be in presidential campaigns?
It will be a huge one.
First, the timing of potential litigation matters. If Biden is still in office, the administration will appeal. It’s hard to say if someone else in the office—especially a Republican, and specifically Donald Trump who previously attempted to rescind DACA—would do the same.
It’s also important to note that DACA recipients in particular, and Dreamers in general, have garnered a lot of sympathy amongst the American public. These are young people brought to the United States, and it's become a very popular program, which is something candidates, and Congress as well, should consider. DREAM Act legislation is overwhelmingly popular with American voters but has thus far failed to pass in Congress.
What is DACA’s impact on the broader conversation about immigration in the US?
If it is your belief that somehow removing DACA or any such protection is magically going to help with immigration enforcement—it won’t. There are 11 million people without lawful status in the United States. It’s a false choice to believe that removing DACA protection will reduce that number or that people will somehow stop entering or remaining in the country unlawfully.
Ultimately, if we don't find a solution, not just for DACA recipients, but for the unlawfully present population in general, we are just going to deepen the immigration problem that we already have in the United States.