The legal fight over the future of the program for so-called Dreamers took another step Wednesday on an expected trip to the Supreme Court, while talk of a renewed push on immigration legislation was tempered with realism about long-standing political gridlock.
Judge Andrew Hanen, the federal judge presiding over Texas’ suit against the Deferred Action for Childhood Arrivals program, ruled Wednesday the program violated federal administrative law despite a new version from the Biden administration in 2021.
The program, first introduced in 2012, provides work permits and deportation relief for hundreds of thousands of immigrants brought to the U.S. as minors.
Wednesday’s ruling didn’t immediately halt the program, and Hanen wrote it didn’t require the government “to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that would otherwise not be taken.”
Backers of the program still pointed to the ruling as a sign for Congress to pass legislation, but they acknowledged getting there is another matter.
Legislation to address Dreamers frequently gets wrapped up in broader immigration talks on work visas, the asylum system and border security — a logjam that has persisted for years as court challenges to DACA moved through the federal courts.
Sen. Richard J. Durbin, D-Ill., the chair of the Senate Judiciary Committee and majority whip, told reporters Thursday that he was “bitterly disappointed” in Hanen’s ruling and said he is “going to try to at least initiate a new effort among members to discuss this.”
Earlier in the week, Durbin said he wanted to look at reviving and updating the prior “Gang of Eight” immigration bill last considered in 2013 as a basis for a new compromise, even if it has little chance of passing the House.
“I think we both know what the likelihood of that passing the other body is but that shouldn’t deter us from doing our duty,” Durbin told ranking member Sen. Lindsey Graham, R-S.C., during a committee hearing Tuesday.
Durbin has routinely introduced legislation solely concerning Dreamers along with Graham, but it has yet to garner enough bipartisan support to pass. Passing any legislation on DACA would require the support of at least nine Republicans and the Republican-controlled House.
Graham said on Thursday that the country faces a “national crisis” over immigration that should spur Congress to act. He pointed to concerns about border security and undocumented immigration under the Biden administration that could make a deal difficult.
“I think the border is the real impetus for doing it. If DACA gets kicked out, and it probably will, then that’s another reason to do it. There’s growing reasons to do it,” Graham said.
“I’m willing to try but it’d be hard,” to pass a bill, Graham said.
Sen. John Cornyn, R-Texas, who has backed some bipartisan legislation on immigration in the past but voted against the Gang of Eight bill in 2013, said Thursday the Biden administration’s approach to the border has “poisoned the well so badly I don’t know that we can find consensus” on an immigration bill.
Cornyn pointed out at a committee meeting Tuesday that the immigration approach preferred by Durbin would face dim chances in the House. House Republicans have frequently criticized the administration’s approach to border security and mulled impeaching Homeland Security Secretary Alejandro Mayorkas over it.
“They’re not going to take up and pass the Gang of Eight bill. You know that, I know that, everyone knows that,” Cornyn told the committee.
There are a few bipartisan proposals, including one from Rep. Maria Elvira Salazar, R-Fla., and Texas Democratic Rep. Veronica Escobar that would give Dreamers a path to citizenship while also changing the asylum process and retooling border security.
At a House Judiciary Committee subcommittee hearing Thursday on border crossings, Escobar said Republicans had gone too far in attempting to “demonize” immigrants rather than seeking a compromise bill like the one she put forward with Salazar.
“It is absolutely ridiculous for either side to think that one day, if we wait long enough, we will get everything we want,” Escobar said.
Hanen’s opinion Wednesday indicated that Congress would have to act on Dreamers. “DHS views the immigration system instituted by Congress as faulty, so it is instituting its own solution, regardless of the dictates of Congress,” Hanen wrote.
There’s also a new generation of immigrants who have come of age in the U.S. and face a future without legal immigration status since the latest version excludes anyone who has entered the country, or been born, after June 2007 — now 16 years ago.
White House spokeswoman Karine Jean-Pierre, in a statement Wednesday, said the administration would continue to process DACA renewals while the court case plays out. The ruling is expected to be appealed.
“As we have long maintained, we disagree with the District Court’s conclusion that DACA is unlawful, and will continue to defend this critical policy from legal challenges,” Jean-Pierre said.
Blanca Gamez, a DACA recipient and staff member at the American Civil Liberties Union, said in a press release that Hanen’s decision is not the final word on the program.
“This ruling is wrong on the law, but sends a clear message: Congress must act to provide permanent protections and a pathway to citizenship for Dreamers and the millions of other undocumented residents who call this nation home,” Gamez said.