Judge again declares DACA unlawful, sending program on path to Supreme Court

A Texas federal judge on Wednesday declared President Joe Biden’s version of an Obama-era program protecting young immigrants from deportation unlawful, saying the new iteration is no different from earlier ones he knocked down.

More than 11,000 Nevada residents benefit from the Deferred Action for Childhood Arrival (DACA) program, which allows people who arrived in the United States as minors to receive work permits and deportation relief, according to federal data.

Last year — after the Biden administration moved to codify his version of the program into federal regulation — Texas-based U.S. District Judge Andrew Hanen took on a lawsuit spurred by a group of Republican-led states.

On Wednesday, Hanen agreed with Texas and eight other states that the program was unlawful, a decision in line with his previous rulings against earlier versions of the program. However, Hanen refrained from terminating the program. 

And while the ruling keeps DACA protections in place for those who currently benefit from the program, it would stop future applicants from being able to apply.

It’s estimated that 95,000 applicants are blocked due to a previous court order blocking new applicants from being accepted, according to U.S. Citizenship and Immigration Services data. 

Another estimated 400,000 eligible undocumented youth are unable to meet DACA eligibility requirements because they came to the U.S. too recently, according to FWD.us research.

The Texas judge’s ruling likely puts DACA on a direct path to the Supreme Court, where advocates and legal experts say the majority conservative bench may rule the entire program illegal.

For more than a decade, DACA has faced a litany of legal challenges, leaving nearly 579,000 undocumented young people nationally without a clear path to citizenship.

Department of Homeland Security Secretary Alejandro Mayorkas, a Cuban refugee appointed by Biden, said he was “deeply disappointed” by Wednesday’s ruling, before adding that his agency still believes “DACA is lawful and Constitutional.”

“The ruling preserves the stay, which means current DACA recipients will not lose their protection from removal. But this ruling does undermine the security and stability of more than half a million Dreamers who have contributed to our communities. The United States is the only home they have ever known. Congress has failed to act, and now Dreamers face an uncertain future, waiting to receive the permanent protection they deserve,” Mayorkas said in a statement.

The Biden administration is expected to appeal the decision through the 5th U.S. Circuit Court of Appeals, which already declared the DACA program unlawful last year.

Nevada Attorney General Aaron Ford vowed to continue efforts to preserve the DACA program.

“This is the latest in a long string of back-and-forth legal decisions that have kept the future of the DACA program and the program’s recipients in doubt,” Ford said in a statement Wednesday. “While I am relieved that the decision allows current DACA recipients to remain protected, I am disappointed at the shortsighted and harmful decision to block these protections for future youth who have known the United States as their home.”

“I am tired and I am sad that this fight is still ongoing,” he continued. 

Immigration advocates in Nevada argued the decision ignores strong legal arguments behind the program.

Brenda Palos — a DACA recipient and a Nevada college graduate from Guadalajara, Mexico — said she felt “intense disappointment” by the decision Wednesday. 

“I am overwhelmed by a range of emotions,” Palos said. “This is my home—I have lived here for over six years, studied, and worked here. I am one of many DACA recipients who have completed their education and have contributed to society. Having our presence and efforts invalidated overnight is a deep betrayal.”

Hanen, the Texas-based district judge, initially ruled the DACA program unlawful after concluding the Obama administration failed to follow proper rulemaking procedures when it created DACA in 2012 through a memorandum, blocking an expansion of the program in 2015.

The case eventually made its way to the Supreme Court where justices deadlocked on the issue, effectively upholding Hanen’s decision to block the expansion while leaving the initial program intact.

Once elected, former President Donald Trump attempted to dismantle the program, but it was allowed to continue as it moved through the courts. And in 2020, the Supreme Court issued a favorable 5-4 ruling declaring that Trump officials’ efforts to dismantle the program were legally flawed.

Advocates say the back-and-forth court rulings are a clear sign more needs to be done to ensure the survival of the program.

Palos, who is also an organizer for Make the Road Nevada, called on the Biden administration to pass permanent protections for immigrant youth and provide them a path to citizenship.

“DACA has been through enough ups and downs as Republicans continue to attack it,” Palos said.