After months of waiting for decisions on the future of the Deferred Action for Childhood Arrivals (DACA) program, hundreds of thousands of undocumented youth are back to where they started—waiting for a legislative fix to their ongoing legal limbo.
The Biden administration and the states suing to end DACA continue to fight it out in court. But the Biden administration doesn’t seem to be fighting as hard as some immigrant advocates might like.
What is the latest in the DACA litigation?
After the Fifth Circuit Court of Appeals issued a decision finding the 2012 version of DACA to be illegal, it once again sent the case back to Texas federal district court Judge Andrew Hanen. Then last Friday, the federal government agreed with the states that the Texas court’s 2021 injunction halting DHS from enrolling new people in DACA would cover the new rule announced in August, which was set to take effect on October 31, 2022.
The Biden administration did not explain why it conceded that the Texas federal district court’s 2021 order applies to the new DACA regulation that the administration issued after that ruling. But there are several reasons it might have done so. Despite being over 450 pages, the new rule changes little about the eligibility criteria or operation of DACA. And Judge Hanen already found the similar 2012 version of DACA to be substantively unlawful for a variety of reasons. The chance of changing his mind about the new rule was low.
Perhaps most importantly, Judge Hanen’s partial pause of his 2021 order and the decision from a federal district court in New York in favor of DACA recipients mean that the status quo will continue.
What does this mean for undocumented youth in the U.S.?
The recent orders mean that people who are currently enrolled in DACA can continue to request renewals of their grants and work authorization. But U.S. Citizenship and Immigration Services (USCIS) still cannot grant DACA to undocumented youth who want to apply for the first time, even if they otherwise meet the eligibility criteria. The Biden administration has also decided to preclude people whose DACA expired more than a year ago from renewing their protections. Instead, they’ll be classified as “initial applicants,” meaning that they also cannot be granted DACA under the current legal framework.
First-time applicants should also keep in mind that the dueling court orders has resulted in a bureaucratic quagmire. USCIS is obligated under the New York court order to accept initial applications for DACA and work permits from people who do not currently have DACA. But the applications can’t move forward from there. That’s because the Texas court prohibits USCIS from actually granting any of those applications as long as Judge Hanen’s order remains in effect. That means the $495 fee that initial applicants for DACA must pay for biometrics and work authorization will remain in USCIS’ coffers, without any guarantee their applications will ever be decided.
Unfortunately, Judge Hanen’s order will likely be in effect for a long time. And there may be worse to come as the Texas case winds its way back through the appeals court and to a Supreme Court that is consistently voting against immigrant rights. While the case may be proceeding too slowly to make it to the high court this term, there is little doubt that it will end up there soon, possibly in the 2023-2024 term.
If the case reaches the Supreme Court, the Court will likely decide the legality of DACA under our immigration laws. Unlike the first time DACA was in front of the Court in 2016—when the justices affirmed the Fifth Circuit’s rejection of a proposed expansion to DACA—and its last trip to the Supreme Court in 2020 when the Court decided that the Trump administration had not ended DACA in a procedurally correct way, this time it will face a more fundamental existential threat. Given the current nine justices, the third time in front of the Supreme Court is unlikely to be a charm for DACA and the undocumented youth it seeks to protect.
For now, the question of DACA’s future continues to ping-pong between the Executive branch and the judiciary in the absence of a congressional solution. It is long past time for Congress to take action. Undocumented youth should have the opportunity to permanently remain with their families and communities without worrying about whether the next election or anti-immigrant lawsuit will lead to their deportation.