Pressure has intensified on Congress to find a legislative solution for hundreds of thousands of undocumented immigrants after a Texas federal judge struck down the Deferred Action for Childhood Arrivals program that shielded them against deportation and provided other protections.
Liberal lawmakers who spent weeks pushing for the inclusion of immigration provisions in the upcoming budget reconciliation bill said the need to enshrine permanent legal protections for immigrants into law is greater than ever following Friday’s ruling that affected the Obama-era program.
“DACA empowered undocumented youth to come out of the shadows and contribute to our communities in immeasurable ways — from serving in our military to being on the front lines of the coronavirus pandemic,” Sen. Catherine Cortez Masto, D-Nev., said in a statement.
“The U.S. is the only home that Dreamers have ever known, and they should not be forced to live in fear of deportation,” she added, using the popular term for DACA recipients.
The Biden administration pledged to appeal the ruling, but the decision raises the specter of numerous other legal battles at federal courts across the country on related litigation over DACA, which also provides work permits for certain undocumented immigrants brought to the U.S. as minors.
The ruling late Friday by U.S. District Judge Andrew Hanen of the Southern District of Texas shields current recipients but blocks approval of new DACA applications, including those of roughly 55,000 already in the pipeline, increasing the urgency of finding a permanent solution for Dreamers.
Even though many Democrats had anticipated the outcome from Hanen, appointed by former President George W. Bush, the news was met with disappointment and calls for action.
Senate Judiciary Chair Richard J. Durbin, D-Ill., one of the original sponsors of legislation to protect Dreamers, hinted at his party’s plans to go it alone on immigration after months of bipartisan meetings with Republicans yielded little consensus.
“Congress will now act quickly — with or without the party of Donald Trump — to allow these Americans to finally become citizens,” he said in a statement.
It is far from clear whether the Senate parliamentarian will allow immigration provisions, such as legal protections for DACA recipients, in a reconciliation package that’s supposed to be limited to policies directly affecting the federal budget.
“I’m not presuming reconciliation is the only path. It’s too soon to do that. I’m still open to the committee moving, but we need some help on the Republican side,” Durbin told reporters Monday.
In the wake of Friday’s ruling, Democrats are gearing up for a protracted effort to ensure long-sought protections for immigrants are included in the final bill.
“You can definitely expect there’s going to be a back-and-forth should we get to the point where the parliamentarian says, ‘This can’t be done, or that can’t be done,’” a Senate Democratic staffer said.
What’s next on appeal
While all eyes may be on Congress, the fight in court isn’t over either. The Biden administration pledged to contest the decision at the U.S. Court of Appeals for the 5th Circuit, which encompasses the Texas district court.
Homeland Security Secretary Alejandro Mayorkas expressed disappointment in the ruling “and its impact on families across the country.” In a statement over the weekend, he said the Department of Justice “intends to appeal.”
President Joe Biden on Saturday also condemned the court’s ruling as “deeply disappointing.” He added that the Department of Homeland Security would issue a rule establishing DACA via the formal regulatory process “in the near future.”
In a call with reporters following the decision’s release, lawyers for a group of DACA recipients who joined the case to defend the program during the Trump administration expressed confidence that Hanen’s ruling would be vulnerable on appeal. Among other things, they said they didn’t believe the Texas-led state coalition that brought the suit had the grounds to challenge the program, citing a recent Supreme Court ruling preventing a group of states from challenging the Affordable Care Act.
With the Biden administration’s muscle behind this appeal, the case could make its way up to the Supreme Court.
The last time Hanen ruled against the immigration program was in 2015, when he shot down the Obama administration’s attempt to expand DACA and to shield the undocumented parents of American citizens. In that case, the 5th Circuit upheld Hanen’s ruling.
If the appeals court acts similarly this time around, it could pave the way for the Supreme Court to take a fresh look at the program. While the high court ruled last year that the Trump administration had improperly rescinded the DACA program, the justices have yet to weigh in on the immigration program’s core legality.
Even before the ruling, the DACA program proved sluggish during the first months of the Biden presidency, with only 763 new applications approved in the first quarter of 2021.
Nearly 50,000 new applications were received, creating a total backlog of more than 55,000 applicants whose new applications for DACA status have now been put on hold.
One of those applicants is Michelle Lainez, a 19-year-old Trinity Washington University student who applied for the DACA program in March, after creating a GoFundMe page to raise money for the legal paperwork and application fee.
On Monday, she called Hanen’s decision “devastating,” particularly after completing her biometrics appointment in May as part of the application process. She had checked her application status every day since to see if a decision was reached.
“We’ve just been told to wait and wait,” she said in an interview. “I don’t want to be 40 and still be told to wait for DACA.”
The DACA program, created in 2012, allows certain immigrants who arrived in the U.S. as children to live in the United States legally for two years, with protection from deportation and permission to work.
There are 616,030 total DACA recipients in the country, according to the most recent data from U.S. Citizenship and Immigration Services.
While the federal government pursues its appeal, Hanen’s ruling also has the potential to spur activity in other courts across the country, according to lawyers involved in the case.
Douglas H. Hallward-Driemeier, a lawyer who represented DACA recipients, said Hanen’s ruling is already in “tension” with one by a New York federal judge in December. That decision ordered DHS, then under the Trump administration, to resume approving first-time DACA requests following the Supreme Court ruling against the administration’s attempted termination.
Hanen briefly acknowledged this other court ruling in his opinion Friday but did not elaborate on how the two rulings should interact.
“The fact that the judge’s order now creates this inconsistency, this tension, between orders of two district courts of the United States raises an issue of really critical importance,” Hallward-Driemeier said.
The apparent conflict between the two court rulings underscores why some are so critical of nationwide injunctions, or rulings by individual district court judges that apply nationwide.
Trump administration officials repeatedly slammed these types of court rulings in responses to orders blocking their immigration restrictions. Regional injunctions in the immigration space, however, may create confusion, where different immigration laws apply in different states.
The Supreme Court recently expressed “doubt if not outright hostility” toward nationwide injunctions by district court judges, said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which also represented DACA recipients in the case.
“Indeed, the clash between two equally situated district court judges in New York and Texas epitomizes the reason some jurists are hostile to the entry of nationwide injunctions,” Saenz told reporters Friday.
Jessica Wehrman contributed to this report.