DACA Dangers: Permanent Injunction Places Halt on New Applicants, Leaves Existing Applicants With Options

Someone faces away wearing a Dreamers jacket.
A district court judge in Texas has found that the DACA program is “illegal” and ordered a halt on all applications currently in the pipeline. However, in the same injunction the judge noted that preexisting DACA recipients still have options to obtain support. / Photo credit rob walsh on Unsplash.

Yet another challenge to the legality of the Deferred Action for Childhood Arrivals program created under the Obama administration brought the program helping thousands of young immigrants caught between legal statuses into limbo again.

With an injunction stemming from the case Texas v. U.S. v. Karla Perez, et al, the DACA program was halted across the country for new membership applications. While the current injunction doesn’t eliminate the option for existing DACA recipients to apply for renewal, immigrant advocates warn that there’s a chance that the program could close further at any time.

Emily Brock, a senior staff attorney of the Rocky Mountain Immigrant Advocacy Network’s Children’s Program, said that the ruling is telling thousands of people who are Americans, young people arriving in the country when very small, and only ever known life in the U.S. “And they’re basically being told that the program hopefully providing them a pathway to citizenship is illegal,” she said.

The DACA program allows certain individuals brought illegally into the U.S. as children to request deferred action for a period subject to renewal, according to the U.S. Citizenship and Immigration Services website. The program, overseen by the U.S. Citizenship and Immigration Services and the Department of Homeland Security, was challenged in court multiple times throughout the Trump administration with the goal of limiting or removing it, even reaching the U.S. Supreme Court, which ordered the program to continue. But, with this new injunction the future seems unclear.

In addition to the order stopping new applications from being processed, including those who were too young at previous times to apply for DACA — or it was previously halted by government action — Brock said the order also leaves open the possibility for existing DACA members to be removed in the future.

Further, the information, which is provided in an initial DACA application, includes sensitive details that Immigration and Customs Enforcement could use to begin removal proceedings against an individual now facing limited options of avoiding removal from the U.S., according to Brock. 

“The most significant equitable interests to consider here are those of DACA recipients,” the injunction states, continuing to explain that while recipients aren’t enjoined themselves, the court found it was entitled to take their interests into consideration. 

“Given those interests, it is not equitable for a government program that has engendered such significant reliance to terminate suddenly,” the injunction states. “This consideration, along with the Government’s assertion that it is ready and willing to remedy the legal defects of the DACA program, indicates that equity will not be served by a complete and immediate cessation of DACA.”

In a press release from the Texas Attorney General’s Office, the state attorney general Ken Paxton explained that the suit was, from his perspective, not about immigration policy but about the law. Paxton has been involved with DACA lawsuits, this one starting back in 2018, reaching back several years and with the support of other states.

“This lawsuit was about the rule of law — not the reasoning behind any immigration policy,” Paxton said in a statement. “The district court recognized that only Congress has the authority to write immigration laws, and the president is not free to disregard those duly-enacted laws as he sees fit.”

The injunction order was penned by U.S. District Judge Andrew Hanen of Texas, a fixture in the news dealing with DACA challenges since 2018.

According to the U.S. Citizenship and Immigration Services website, the July 16 declaration of the policy as illegal granted summary judgement to the multi-states plaintiffs’ Administrative Procedure Act claims, which vacated the June 15, 2012 DACA memo. This document also remanded the memo to DHS for further consideration and issued a permanent injunction stopping the government’s continued administration of DACA.

The USCIS states on its website that the organization will continue to accept the filing of both initial and renewal DACA requests, and requests for employment authorization. However, with the order, DHS is not able to grant any requests. The organization will continue to grant or deny renewal DACA requests following existing policy.

Last December, following a different order of a district court and case from New York,  DHS was required to reinstate the DACA policy. As previously reported by Law Week,  the DACA program was reinstated December 2020 after changes were made by the Trump administration to remove the program and the Department of Homeland Security’s failure to follow lawful designations. As a result, his order was vacated.

But, while that was a small victory, even back in December immigrant advocates worried about another case with far-reaching consequences. Advocates told Law Week they were concerned about this Texas case questioning whether former President Barack Obama exceeded his authority enacting DACA. At the time, RMIAN’s Ashley Harrington warned that she was worried DACA could be halted again.

Here in Colorado, immigrant rights groups are already taking stands on the decision and taking steps to help DACA individuals or potential recipients navigate the new waters. The Rocky Mountain Immigrant Advocacy Network, a nonprofit serving low-income individuals in immigration proceedings, called the ruling by Judge Hanen “devastating.” The organization says that it will continue to support “DACA-mented Coloradans” in a statement.

In a press release, the Colorado Immigrant Rights Coalition said that while the judge’s ruling doesn’t end DACA status for those already in the program, “it did partially end the program by barring new applications from being processed and approved.” The press release claims that roughly 11 million individuals are affected by the DACA injunction, and that the decision came from a “years-long” suit by politicians looking to end the program.

“We call on our Colorado Senators John Hickenlooper and Michael Bennett to vote to pass the reconciliation package introduced this week in the Senate which would finally provide permanent protections to DACA recipients,” the CIRC release states, adding that it called on the current administration as well. 

Brock said she has been working with a family with two siblings of different ages. The older sibling was able, by reaching the allowed age and having paperwork prepared, to obtain DACA status in one of the times where enrollment to the program. However, the DACA recipient’s younger sibling was in the process of collecting documents and materials necessary for a DACA application, as well as approaching the age of attempting to obtain DACA status, when this recent order came down.

This situation, in turn, has left two siblings on very different grounds, according to Brock.

One unifying factor to parties involved with this injunction, from the plaintiffs to the judge himself, is a requirement for Congress to take action to define what will happen to DACA.

While RMIAN and Brock are hopeful there will be a reversal of the decision via the courts, Brock said ultimately Congress and the Biden administration need to come together to come up with a permanent solution for dreamers through legislative action to prevent a “roller coaster through the courts” of DACA status.

“It needs to be very clear that Congress has said Dreamers have a pathway to citizenship,” Brock said.

“RMIAN implores the Biden administration and Congress to ensure a pathway to citizenship for all Dreamers, providing the permanent solution our DACA-mented clients and community deserve,” the RMIAN release states. “Anything less strips our immigration system of fairness and equity.”

 memo opinion and order from Hanen on the DACA program seemed to agree with RMIAN. He wrote, “The court will not succumb to the temptation to set aside legal principles and substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”

UCLA Law Professor Hiroshi Motoura, a RMIAN board member, said that DACA is an “essential part of U.S. immigration law.” He argued that it is within the president’s authority to ensure that immigration laws are administered with an even-handed approach. Motoura also called on Congress to act to give DACA recipients a clear path to lawful citizenship and permanent residence.

On July 17, President Joe Biden released a statement calling on Congress to ensure a permanent solution to the DACA situation by granting a path to citizenship for DACA recipients.

Brock said that RMIAN is still advising people interested in filling out a DACA application regardless of the order. Brock said she suggests anyone looking to hopefully obtain DACA status in the future to continue preparing materials and gathering documentation in case the program opens enrollment in the future.

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