DACA Once Again Thrown Out by Federal Judge: Hundreds of Thousands of DREAMers Fear for Their Future

The need to protect DREAMers is an old and still urgent issue. DREAMers are adolescents and young adults who remain undocumented and were brought here as very young children by their non-citizen parents. They are members of every community; they attend our public schools; and in many cases, once they have grown up, they are teaching in our schools or working in our communities.  In most instances the United States has been home to these young people during almost their entire lives. English is likely to be their primary language, and they may not know anyone in their parents’ home country. But they remain undocumented and, these days, threatened with deportation if DACA, the program President Obama created to protect them, is eliminated.

These young people are called DREAMers because the protection they and their advocates have sought has been called the DREAM Act (Development, Relief, and Education for Alien Minors Act).  A 1982 U.S. Supreme Court decision in Plyler v. Doe protects their right to a public school education despite that they are not U.S. citizens, but until President Obama created DACA (Deferred Action for Childhood Arrivals) by executive order, they were left vulnerable. DACA was a temporary program intended to at least protect these young people’s right to work, to apply for a driver’s license and to avoid deportation. Some states still deny DREAMers access to in-state tuition at public colleges or to publicly funded scholarships.

The NY TimesMiriam Jordan explains who has been eligible for DACA  protection: “To qualify for DACA, applicants must have entered the United States before age 16, lived in the country continuously since June 2007, finished high school or enlisted in the military, and have a clean criminal record.”  Approximately 700,000 young people are currently protected.

A week ago, a federal judge in Texas ruled against President Obama’s DACA program, letting current protection stand for young people already in enrolled in the program, but banning the Department of Homeland Security from awarding DACA protection for any new applicants, including a huge backlog of applications already filed that the Department of Homeland Security has allowed to build up during this COVID-19 year.

Jordan reports: “A federal judge in Texas on Friday ruled unlawful a program that has shielded hundreds of thousands of undocumented young adults from deportation, throwing into question yet again the fate of immigrants known as DREAMers. The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program… by executive action in 2012.  But the judge wrote that the current program recipients would not be immediately affected, and that the federal government should not ‘take any immigration, deportation or criminal action’ against them that it ‘would not otherwise take.’  The Department of Homeland Security may continue to accept new applications but is temporarily prohibited from approving them…”

For NPR, Rachel Treisman reports that in 2018, another lawsuit threatened the DACA program; the same judge, Andrew S. Hanen ruled against the program; and, in 2020, the program was upheld by the U.S. Supreme Court.  Now, “Some two years later, following the Supreme Court ruling and a series of motions and arguments in the Texas case, Hanen directed the involved parties to bring their claims before him again.”

CNN‘s Elie Honig explains the difference between the 2018 and the current case: “Just last year, DACA survived an existential legal challenge when the Supreme Court, by a five to four majority, rejected the Trump administration’s effort to repeal the Obama-era executive action that created the program. The Court ruled that while one president generally has broad authority to modify or repeal the executive action of a prior president, such action still must comply with certain administrative procedures. The Court found the Trump administration failed to follow these guidelines because it never offered a ‘reasoned explanation for its action’… (T)he… new case involves the underlying constitutionality of DACA itself. Judge Hanen ruled that DACA is unconstitutional because it was created by executive action rather than legislation.”

In the current case, the NY Times‘ Jordan reports, “Texas led the effort to terminate the program, and was joined by Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia.  Officials in those states had argued that the program was improperly adopted and left them with the burden of paying for education, health care and other benefits for immigrants who remained in the country under DACA’s protections.”

Judge Hanen’s decision last week will likely be appealed. Treisman reports for NPR, “One day after a federal district judge in Texas ruled against the Deferred Action for Childhood Arrivals program, President Biden said the Department of Justice intends to appeal the decision.”

The case could be overturned by a higher court on appeal or could become irrelevant if Congress were to agree on legislation to protect the rights of DREAMers. The National Immigration Law Center responded to last week’s ruling by federal Judge Hanen by pointing out that, “DACA is a hugely successful and transformative policy with overwhelming public support.” And despite dysfunction in a polarized Congress, it is possible that some agreement can be reached on DACA: “The House of Representatives already passed the bipartisan Dream and Promise Act in March, and this week Senate leadership included a pathway to citizenship as part of its budget resolution.”

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