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Federal Judge Declares DACA Program Unlawful

Calling a popular Obama-era program that shields qualifying immigrants from deportation “legally defective,” a federal judge in Texas on Friday ordered the Department of Homeland Security to stop approving new applications for the program and make changes to it.

HOUSTON (CN) — The judge bought Texas’ claims of economic harm. He determined Texas has standing because undocumented immigrants enrolled in the Deferred Action for Childhood Arrivals program make the state's labor market more competitive, making it harder for legal residents to find work.

U.S. District Judge Andrew Hanen’s ruling declaring Deferred Action for Childhood Arrivals illegal did not come as a surprise to the thousands of immigrants enrolled in the program. But many say they are growing depressed and weary from repeatedly having their status thrown into jeopardy by court orders.

Poll after poll shows a large majority of Americans support giving DACA recipients a pathway to citizenship. They were brought into the U.S. illegally as children or became undocumented along with their parents when their visas expired.

Yet they graduated from U.S. schools and stayed out of trouble. And they caught a break when then-President Barack Obama, a Democrat, rolled out DACA in 2012, as a work-around of Republicans’ unwillingness to pass comprehensive immigration reform.

Obama’s Department of Homeland Security Secretary Janet Napolitano launched DACA with a memo in 2012.

It allows some immigrants brought to the country illegally as children, who have no criminal records, to qualify for protection from deportation and allows them to get federal work permits and driver's licenses that can be renewed every two years.

The more than 600,000 people in the program come from 150 different countries, but 80% are from Mexico. The states with the most DACA youths are California, New York, Florida, Illinois and Texas — home to over 100,000.

In a bid to end DACA, Texas and several other Republican-led states sued the government in May 2018.

While advocates of the program point out that many DACA recipients are business owners, and hundreds hold jobs in the medical field that placed them on the front lines of caring for Covid-19 patients, Texas argues they are a drain on its finances and are filling jobs that could go to unemployed Texans.

Texas claims it spends more than $250 million per year on social services for the DACA recipients living in the state, and they have an advantage in obtaining jobs because under the Affordable Care Act employers do not have to provide them with health insurance, or face penalties, as they do for U.S. citizens and residents.

Hanen bought Texas’ claims on economic harm. He determined Texas has standing because DACA enrollees make Texas’ labor market more competitive, making it harder for legal residents of Texas to find work.

Hanen, a George W. Bush appointee, found DHS had violated the Administrative Procedure Act by not putting DACA through a public notice-and-comment period as required of substantive rule changes.

He rejected the claims of 22 DACA recipients, represented by the Mexican American Legal Defense and Educational Fund, who, joined by the State of New Jersey, intervened to try to save DACA.

The intervenors argued DACA was not a major rule change, but merely an act of prosecutorial discretion — the government deciding who it won’t deport because it does not have the resources to remove the estimated 11 million paperless immigrants living in the U.S.

But Hanen noted that around 1.5 million people are eligible for DACA, and said Congress had not given DHS authority to adopt a program of this magnitude.

“While the law certainly grants some discretionary authority to the agency, it does not extend to include the power to institute a program that gives deferred action and lawful presence, and in turn, work authorization and multiple other benefits to 1.5 million individuals who are in the country illegally,” he wrote in a 77-page order.

Hanen vacated the program and remanded it to the DHS to fix its legal defects.

Hanen stayed his vacatur order, however, for the people already enrolled in DACA, acknowledging, “Hundreds of thousands of individual DACA recipients, along with their employers, states and loves ones, have come to rely on the DACA program.”

The judge issued a permanent injunction barring DHS from approving new DACA applications and ordered DHS to post notice of it on its websites.

He said he too has sympathy for DACA recipients because they have overcome many hardships and become productive members of American society.

“The Judiciary, however, is not the branch of government that makes decisions based upon the popularity of an idea or because many are sympathetic toward or biased against a particular group or program,” he wrote.

Hanen stressed that role belongs to Congress. And Republicans are pressing for a solution to take the issue out of the courts’ and DHS’ hands.

GOP U.S. Senators John Cornyn, of Texas, and Thom Tillis, of North Carolina, are urging Senate Judiciary Committee Chairman Senator Dick Durbin, D-Illinois, to co-sponsor a bill to offer permanent legal status for people enrolled in DACA.

Cornyn and Tillis said the American Dream and Promise Act of 2021, which Democrats pushed through the House of Representatives in March, has no “politically viable path forward” in the Senate, as it would provide a pathway to citizenship for an estimated 4.4 million undocumented immigrants.

Angered by Hanen’s ruling, the immigrant advocacy group United We Dream renewed their calls Friday for Congress to step in.

“Hanen’s decision comes after years of Republican attacks. Do not forget that Texas Republicans brought this litigation on, and they’ve kept it going to ensure harm and expose hundreds of thousands to deportation. We need permanent protections NOW,” the group wrote on Twitter.

Hanen is very familiar with DACA.

He issued an injunction in February 2015 blocking an expanded version of DACA and Deferred Action for Parents of Americans, or DAPA, two directives Obama unveiled in November 2014, after a coalition of 26 states led by Texas sued.

The Fifth Circuit upheld Hanen’s injunction. A 4-4 split at the Supreme Court in June 2016 left the order in place.

The Supreme Court weighed in on DACA again in June 2020 when a 5-4 majority kept the program alive, finding the administration of former president Donald Trump had arbitrarily decided to end it.

The Mexican American Legal Defense and Educational Fund and Texas Attorney General Ken Paxton did not immediately respond Friday afternoon to requests for comment on Hanen's ruling.

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