Federal Court Rules That DACA Is Illegal! Where Do We Go From Here?

CNW Legal Analyst, Attorney Caroly Pedersen

In a recent Federal court ruling, the judge struck down Obama’s Deferred Action for Childhood Arrivals (DACA) program, finding that DACA was illegal and that President Obama had exceeded his executive authority in enacting the policy.

As part of his ruling, Federal Texas court judge Andrew Hanen ordered the USCIS to stop issuing any new DACA approvals on new applications.

For background, the DACA program was implemented in 2012, under the Obama administration to provide protection to young immigrants brought to the U.S. by their parents before age 16, who had no legal immigration status.

Under the policy, young immigrants granted DACA status are allowed to remain in the U.S. legally and live and work, as well as renew their status every two years. To be eligible, applicants must have arrived in the U.S. by June 15, 2007, before the age of 16 and have continuously lived in the country since that time.

The program applies to young immigrants who were under age 30 (at the time of the program’s implementation), who have either graduated high school, are currently in school (or have a GED certificate) or have been honorably discharged from the U.S. armed forces. Estimates are that this program may assist some 800,000 young immigrants living in the U.S., who are a vital asset to our communities and economy as a whole.

Shortly following Obama’s creation of the program in 2012, many Republicans held states, including Texas sued to stop its implementation. And while the policy was briefly paused, courts allowed it to resume pending final court decisions on the matter.

However, once Trump took office in 2017, he canceled the DACA program, which prompted lawsuits that eventually made it to the Supreme Court. In 2020, the majority of the court sided in favor of DACA, ruling that the Trump administration’s plan to dismantle the program was not procedurally correct. The court did not make a decision as to whether DACA was legal or not, just on the matter of Trump’s procedural efforts to cancel it.

Many believed that given the court’s ruling, Congress would soon take up the matter and finally pass legislation granting young DACA holders permanent status and a path to citizenship.

Biden vowed to take all steps possible to protect the program and immediately issued an executive order directing the DHS to “protect and fortify” DACA. The administration further expressed its support for permanent Congressional legislation to give young immigrants green cards and expedited citizenship.

The problem is that the President alone cannot grant permanent status or citizenship to DACA holders unilaterally. If Biden did try to enact such a policy, the courts would stop it in its tracks. So, with this recent court decision against DACA, where do we go from here?

First, the Biden administration plans to appeal the decision, but that process will take time and will not provide any immediate relief.

On the legislative front, Congressional Democrats have indicated they may try to include DACA relief through the budget reconciliation process in September, however, the passage is not certain.

In the short term, in response to the court order, the Biden administration has decided to continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization.

The USCIS will process renewals and issue work permits for two years but is required to pause processing of first-time applications pending further court or legislative developments.

 

You can read more about the recent court decision and the USCIS plans to continue to accept new DACA applications by visiting www.Immigratetoday.com

** Contributions to this Column are made by Attorney Caroly Pedersen, Esq. of the American Immigration Law Center

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