Immigrant-rights groups are urging “Dreamers” to quickly renew their protections under the Obama-era DACA deportation amnesty after a federal court put the program on thin ice late last week.
Judge Andrew S. Hanen ruled that the Obama administration probably broke several laws in creating the Deferred Action for Childhood Arrivals program in 2012 — though he did not order an immediate halt, saying it would be inappropriate to do so at this stage of the case.
But the decision creates a legal mess for the government, Dreamers, activists and others, because it clashes with several other courts that have ruled the Trump administration’s phaseout is likely illegal. Taken together, all the rulings mean the amnesty is illegal, but so are the efforts to erase it.
Just how much of a mess was underscored after the ruling. Some immigrant-rights groups and businesses who rely on inexpensive labor praised the ruling as a “victory” for hundreds of thousands of Dreamers, while others said it was a major loss, leaving them in a legal limbo that has shown little sign of getting solved.
The matter is likely to speed through the appeals courts and all sides expect it will reach the Supreme Court, perhaps even before the end of the upcoming term.
In the meantime, though, activists urged Dreamers to renew their permits under DACA, earning at least another two years of status — and promising to make Republicans pay for failing to put the program on more permanent footing.
“Trump was wrong to kill DACA and the Republican-controlled Congress was wrong to kill the Dream Act. In fact, if Congress if had passed the Dream Act, there would be no court case and no uncertainty,” said Cristina Jimenez, executive director of United We Dream Action.
In his ruling, Judge Hanen said Mr. Obama exceeded his powers when he created the program, granting a broad amnesty from deportation to an entire class of people — in this case Dreamers, who are young adults who came to the U.S. as minors, often without any say in the decision.
Judge Hanen said while the idea of aiding Dreamers may be right, Congress must act.
“DACA is a popular program and one that Congress should consider saving. Unfortunately, the judiciary is not the branch of government designed to salvage a program that should have emanated from Congress,” he wrote.
Texas Attorney General Ken Paxton, who brought the lawsuit, said that’s why he forced the legal case on which Judge Hanen ruled.
“President Obama used DACA to rewrite federal law without congressional approval,” he said. “The debate over DACA as policy is a question for lawmakers, and any solution must come from Congress, as the Constitution requires.”
The Obama administration had portrayed DACA as guidance to immigration officials on how to prioritize deportations. It said Dreamers were such a low priority that they couldn’t be deported — and further, said they should be given work permits, helping them enmesh themselves in American society. The policy was known as “deferred action.”
But testimony in the case showed applications were rubber-stamped, and few people were denied if they cleared the most basic eligibility requirements of being the right age, having worked toward an education, and having avoided major criminal records.
More than 800,000 Dreamers have taken advantage of the program since it first went into effect six years ago, using the work permits to earn driver’s licenses, claim Social Security numbers and gain eligibility for some taxpayer benefits.
From the start it was controversial. Mr. Obama himself had repeatedly said he lacked the authority to grant such a broad carve-out from deportation. His election-season reversal went largely unchallenged in the courts until last year, when Texas led a lawsuit arguing DACA was illegal.
The Trump administration, having already signaled its desire to cancel the program, sided with Texas — leaving Democratic-led states and immigrant-rights groups to mount a legal defense.
Judge Hanen, in his decision, said he was bound by precedent in a 2015 case that struck down a similar but broader Obama-era amnesty, known as DAPA. The ruling would have applied to perhaps 4 million parents who crossed the border illegally and have U.S. citizen or legal immigrant children — it would have expanded the 2012 DACA program, too.
In that case, in which Judge Hanen also had a part, the 5th U.S. Circuit Court of Appeals ruled that such broad attempts to create immigration policy through deferred action violated the Immigration and Nationality Act.
Judge Hanen said there is little practical difference between operations of DACA and DAPA, so if the latter was illegal, the former is likely illegal as well. The judge said neither DACA’s apparent popularity with the public nor the sympathy arisen by the plight of Dreamers can overcome the clear language of the INA.