A federal judge’s decision against the DACA program injected new urgency into Congress‘ desire to give “Dreamers” a permanent legal solution. Still, the court ruling did nothing to overcome the deep divisions that have blocked every attempt over the past decade.
Judge Andrew S. Hanen‘s Friday afternoon bombshell opinion said the program, invented by the Obama administration in 2012, cut too many corners and cannot legally stand.
Judge Hanen halted approvals of applications, though he said the more than 615,000 active DACA recipients would retain their protections.
That puts the program back on the same footing it had during most of the Trump administration, and it tosses a political hand grenade into the laps of lawmakers on Capitol Hill.
Immigrant rights activists have declared a DACA replacement to be a must-pass priority for Democrats, who now control Washington.
“Dreamers are the fabric of this nation, and they deserve better,” said Lydia Guzman, with the League of United Latin American Citizens (LULAC). “The ball is in the Senate’s court to pass a Dream Act that will protect Dreamers. Their home is here.”
President Biden chimed in with a call to action. “Only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve,” he said.
He wants a path to citizenship to be part of massive legalization covering an estimated 11 million illegal immigrants in the U.S., or at least part of a package of bills covering some 3 million Dreamers, farmworkers and migrants in the country under temporary protected status.
That smaller package of bills has already cleared the House, and Mr. Biden said over the weekend that he wants it to become part of the budget bill Democrats have begun writing. That could circumvent a filibuster and allow it to be passed without any Republican support.
The current surge at the border, which experts trace back to Mr. Biden’s lax immigration enforcement policies, complicated those calls for action.
Sen. Lindsey Graham of South Carolina, a key Republican who has worked with Democrats on immigration in the past and has been the lead sponsor of legislation legalizing Dreamers, said Sunday that Democrats will have to step up with serious border security if they want Republican cooperation.
“Here’s what I want. I want you to finish the wall, which needs to be finished, and end catch-and-release for the asylum seekers, which will shut off a wave of illegal immigration, and I will vote for DACA legalization,” Mr. Graham said on Fox Business’ “Sunday Morning Futures.”
But Mr. Graham said he is not getting any Democratic takers. He said Democrats have become “the party of open borders” and specifically blamed left-wing lawmakers such as Rep. Alexandria Ocasio-Cortez of New York and Sen. Elizabeth Warren of Massachusetts for leading their party away from border security.
That leaves the politics effectively the same as they have been for 15 years.
Attempts to pass broad bills to legalize millions of illegal immigrants failed in 2006, 2007 and 2013. Attempts to pass smaller bills legalizing Dreamers have faltered nearly every year.
That effort came closest to success in 2018 when President Trump said he would support a full pathway to citizenship for DACA recipients in exchange for border wall funding, limits to the chain of family migration and an end to the visa lottery, which doles out green cards by chance.
Democrats said that price was too high for legalizing Dreamers.
The stalemate has left DACA recipients in limbo.
The program, officially known as Deferred Action for Childhood Arrivals, applied to illegal immigrants who arrived before mid-2007, had been in the country for at least five years and were younger than 31 when DACA became active in 2012. The applicants were to have kept relatively clean criminal records and to have pursued education.
Under DACA, they had a two-year stay of deportation and were eligible for some taxpayer benefits, giving them a chance to embed into society. Although it did not grant permanent legal status, it was renewable. Some Dreamers have been on DACA status for nearly nine years.
The Obama administration created the program through a Homeland Security memo. President Obama said his administration exercised “prosecutorial discretion” not to pursue immigration consequences of deportation against Dreamers.
Judge Hanen ruled that it was a major policy change that should have gone through the full regulatory process. Because it didn’t, he said, it violated the Administrative Procedures Act.
“Accordingly, the court holds that DHS was required to undergo notice and comment rulemaking in order to adopt DACA. DHS failed to engage in the statutorily mandated process, so DACA never gained status as a legally binding policy that could impose duties or obligations,” the judge wrote.
He also ruled that he would not dissolve DACA immediately because Dreamers have relied on the program for protection, creating the window of space for Congress to act.
As of March 31, DACA was actively protecting 616,030 people.
During the Trump years, current DACA recipients were allowed to renew but, for the most part, newly eligible Dreamers were blocked from applying. The Biden administration began accepting new applications, though the slow pace of approvals angered immigration rights activists.
In 2015, Judge Hanen ruled that a broader Obama-era deportation amnesty, known as Deferred Action for Parents of Americans, or DAPA, was illegal for the same reasons he found DACA illegal.
That decision was confirmed by the 5th U.S. Circuit Court of Appeals and later affirmed by an evenly divided 4-4 Supreme Court.
The Biden administration says it will appeal Judge Hanen‘s latest ruling on the matter.
Homeland Security Secretary Alejandro Mayorkas vowed to re-create the DACA program lawfully by checking off all the procedural boxes the Obama team skipped.
“I am disappointed by yesterday’s ruling and its impact on families across the country, but it will not derail our efforts to protect Dreamers,” Mr. Mayorkas said Saturday.