Judge again rules DACA illegal, but stops short of ordering deportations

Sept. 13 (UPI) -- A federal judge in Texas on Wednesday ruled against a Biden administration attempt to preserve a decade-old program that protects from deportation hundreds of thousands of immigrants brought illegally to the United States as children, but stopped short of ordering that they leave the country.

The Deferred Action for Childhood Arrivals program, enacted via executive action by then-President Barack Obama in 2012, defers the removal of certain eligible noncitizens who were brought to the United States illegally while granting them access to a renewable 2-year work permit, which has allowed more than 800,000 people to remain in the country since.

Judge Andrew Hanen of the southern district of Texas ruled that the program was illegal in 2021 on the grounds it violated the Administrative Procedure Act of the Constitution for side-stepping public input. The Biden administration then promulgated a new rule it said would "fortify and preserve" DACA.

But the Fifth Circuit Court of Appeals affirmed Hanen's decision while remanding consideration over the new final rule back to his court.

On Wednesday, the President George W. Bush appointee ruled that the Biden administration's final rule is "materially the same" as the 2012 DACA Memorandum that was found to be illegal, and if the government wishes for the program to hold, then Congress needs to act.

"While sympathetic to the predicament of DACA recipients and their families, this court has expressed its concerns about the legality of the program for some time," Hanen said in his ruling. "The solution for these deficiencies lies with the legislature, not the executive or judicial branches."

"Congress' alleged failure to pass, or, stated differently, its decision not to enact legislation, does not empower the executive branch to 'legislate' on its own," he said. "The executive branch cannot usurp the power bestowed on Congress by the Constitution -- even to fill a void."

Though striking down the program a second time, Hanen said that his order does not require the homeland security or justice departments to take any immigration action, including deportation of DACA recipients -- of which 600,000 are in the country.

"We are deeply disappointed in today's DACA ruling," White House press secretary Karine Jean-Pierre said Wednesday night in a statement. "We disagree with the district court's conclusion that DACA is unlawful, and will continue to defend this critical policy from legal challenges."

While suggesting that the Biden administration will litigate this issue, potentially all the way to the Supreme Court, Jean-Pierre said they will also continue to process renewals for current DACA recipients, known as Dreamers, and the Department of Homeland Security may continue to accept DACA applications.

The ruling comes as a blow to Biden, who issued through memorandum on his first day in office to maintain DACA, and to Dreamers, whose future in the country remains in limbo.

Immigration advocates who have for years called on Congress to enact legislation to protect Dreamers on Wednesday renewed their calls for legislative action.

"For as long as DACA has existed, we've seen Congress attempt -- without success -- to give Dreamers a sense of security and solidify their integral contributions to our country," the coalition Alliance for a New Immigration Consensus said in a statement.

"With the fate of DACA recipients and the millions of Americans who rely on them more in jeopardy than ever, Congress has an opportunity -- and a responsibility to act. We need permanent legislation now."

Jennie Murray, president and chief executive of the National immigration Forum, said a legislative solution would not only provide certainty for DACA recipients but those who rely upon them, such as their families, employers and communities.

"Families and neighbors face the very real possibility that their loved ones will be forced to retreat into the shadows or return to countries they have never called home," Murray said in a statement.

After the ruling was issued, DACA recipient Zuleima Dominguez, lead organizer at nonprofit Make the Road New York, said she was "devastated" by the decision that makes her fearful that her family may be torn apart.

"We have lived with immense uncertainty and as pawns in political games for years. Once again, today, an extremist judge has done the bidding of extreme MAGA politicians to try to rob us of our future," Dominguez said in a statement.