Judge Hanen Again Rules DACA Unlawful

FAIR Take | September 2023

Last week, Federal Judge Andrew Hanen from the Southern District of Texas struck down the Biden administration’s final rule on the Deferred Action for Childhood Arrivals (DACA) program. The rule was adopted by the Department of Homeland Security (DHS) in 2022 to put DACA – which has been the subject of several lawsuits – on a “stronger legal footing.”

In his September 13 decision, Judge Hanen ruled that there weren’t any material differences between the Biden Administration’s rule and the original 2012 DACA memorandum, which he found unlawful.  He determined that the Rule violated the Administrative Procedure Act (APA) for the same reasons as the 2012 DACA memorandum did and found the program unlawful.

In his 40-page opinion, Judge Hanen wrote that while the DACA program has been beneficial for recipients and that DACA recipients…are beneficial to the country, still, DHS did nothing to change or resolve the substantive problems found by his Court or the 5th Circuit Court of Appeals. All of DACA’s deficiencies remain and the ultimate solution belongs with Congress and not the executive or judicial branches. He wrote, Congress’s failure to pass legislation to “protect DACA recipients” does not “empower the executive branch to legislate on its own – especially when the legislation is contrary to existing legislation.”

The Judge highlighted two problems in particular that persist in the Administration’s rule. The first was the issue of advance parole, which allows an alien to leave the U.S. with the assurance that he/she will be allowed back in the country. This provision provides DACA recipients a “pathway to citizenship” by allowing them to adjust their immigration status, which Judge Hanen held subverts statutory authority.

The other issue Hanen raised was the lack of a time limit. When DACA was first implemented, President Obama described it as a temporary measure. Both Obama and DHS admitted back then that they lacked the authority to provide a permanent solution without Congressional action. Judge Hanen noted, “DACA has entered its second decade and DHS clearly intends to continue this Congressionally unauthorized program indefinitely…. This is the epitome of the ‘Executive seizing the power of the Legislature.’”

Finally, the Judge concluded that the benefits bestowed upon DACA recipients in the Rule were not severable. Hanen found such “deferred action and work authorization are not separate” and DHS would not have adopted DACA without also granting these benefits. Indeed, he argued, DHS did not need the rule “to exercise forbearance” to the illegal aliens eligible for DACA.  “DHS has always had the right and the power to prosecute or forbear from prosecution any person illegally present in the country, even without an administrative rule or memorandum. Thus forbearance with no benefits would be superfluous.” Hanen added, “long before DACA was instituted, DHS had already categorized the population that would later become DACA recipients as low priority prosecutorial prospects,” so there was no need for a DACA policy aside from “awarding the recipients some level of formal status and the benefits that accompany that status.”

Currently, the DACA program has been in limbo for over a decade. When DHS established the program in 2012, it created 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 years of age, have been present in the U.S. before age 16, continuously having resided 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 suit alleging DACA was illegal because the program violated the Administrative Procedure Act and the Immigration and Nationality Act (INA). In 2021, Judge Hanen ruled in favor of the states, holding DACA was illegal.

The Biden Administration appealed Judge Hanen’s ruling to the Fifth Circuit Court of Appeals and not long thereafter, issued a regulation formalizing the DACA program and curing the procedural defects identified in Judge Hanen’s opinion. The Appeals Court 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 rule was inconsistent with immigration laws passed by Congress. As expected, Judge Hanen’s decision found DACA unlawful, but the ruling preserved the stay which means DACA recipients will not lose their removal protections.

Judge Hanen’s ruling moves a final decision on DACA one step closer to the Supreme Court. It is expected that the Biden administration will appeal Hanen’s decision and the appeal will then go to the 5th Circuit Court of Appeals. The 5th Circuit is likely to rule against the administration, since it has previously declared the DACA program unlawful.