Judge Hanen Hears Oral Arguments on DACA
FAIR Take | June 2023
Last Thursday, Federal Judge Hanen from the Southern District of Texas heard oral arguments on the Deferred Action for Childhood Arrivals program, otherwise known as DACA.
DACA, created in 2012 through the issuance of a memorandum by the Department of Homeland Security (DHS Memorandum, June 15, 2012), established a process whereby aliens could apply for the deferral of their deportations if they met certain criteria. To qualify, an alien must be under 31, present in the U.S. before the age of 16, continuously residing in the U.S. since June 2007, have no legal status, and meet additional requirements. Currently, about 580,000 illegal aliens are DACA beneficiaries.
In 2018, Texas and six other states filed a lawsuit alleging that DACA was illegal because the program violated federal law, namely the Immigration and Nationality Act (INA). In 2021, Judge Hanen ruled that DACA was indeed illegal. That groundbreaking decision contained three important parts. First – and a necessary prerequisite to the rest of the decision – Judge Hanen held that the plaintiff states had to stand to file their lawsuit because they had been harmed by the program. This harm came in the form of benefits available to aliens who have deferred action, including eligibility for social welfare programs, for which the state pays.
Then, Judge Hanen held that DACA was illegal because it had not been formally adopted under the rulemaking process set forth in the Administrative Procedures Act (APA). But ultimately, Judge Hanen held that even if the Department of Homeland Security (DHS) had complied with the procedural requirements of the APA and issued a rule establishing DACA, it had no authority to do so because Congress had not conferred on it the authority to change or alter immigration programs it had already set forth in the statute.
The Biden Administration appealed Judge Hanen’s ruling to the Fifth Circuit Court of Appeals and not long thereafter issued a regulation seeking to formalize the DACA program and cure the procedural defects identified in Judge Hanen’s opinion. The Fifth Circuit upheld Judge Hanen’s decision on both the APA and usurpation of power arguments. However, in light of the new rule, the Fifth Circuit remanded the case to Judge Hanen to determine whether the new rule is inconsistent with the immigration laws passed by Congress. This review of the rule was the basis for Thursday’s hearings.
Remarkably, in Thursday’s hearing, the Biden Administration conceded that its rule was substantially the same as its original DACA memorandum. Instead of arguing on the substance, it argued that the district court lacks jurisdiction to enjoin or vacate the rule, that the deferral of deportation portion of the policy should be upheld even if work authorization and other benefits granted are determined to be illegal, and that relief should be limited to Texas as opposed to nationwide relief. Overall, it seems that the Biden Administration does not hope to prevail before Judge Hanen, or even before the Fifth Circuit, but seeks to preserve its argument that DACA is lawful for a final decision by the Supreme Court.
Despite his 2021 decision, legal experts indicate that it may be months before Judge Hanen issues a formal ruling. Stay tuned for further developments.