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Federal judge says DACA is illegal in ruling likely headed for Supreme Court

HOUSTON — A federal judge on Wednesday declared illegal a revised version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children.

U.S. District Judge Andrew Hanen agreed with Texas and eight other states suing to stop the Deferred Action for Childhood Arrivals, or DACA, program. The judge’s ruling was ultimately expected to be appealed to the U.S. Supreme Court, sending the program’s fate before the high court for a third time.

Hanen barred the government from approving any new applications, but left the program intact for existing recipients during the expected appeals process. Hanen said his order does not require the federal government to take any actions against DACA recipients.

The states have argued the Obama administration didn’t have the authority to first create the program in 2012 because it circumvented Congress.

In 2021, Hanen had declared the program illegal, ruling it had not been subject to public notice and comment periods required under the federal Administrative Procedures Act.

The Biden administration tried to satisfy Hanen’s concerns with a new version of DACA that took effect in October 2022 and was subject to public comments as part of a formal rule-making process.

But Hanen, who was appointed by then-President George W. Bush in 2002, ruled the updated version of DACA was still illegal. He had previously said DACA was unconstitutional and it would be up to Congress to enact legislation shielding people under the program, often known as “Dreamers.”

Hanen also had previously ruled the states had standing to file their lawsuit because they had been harmed by the program.

The states have claimed they incur hundreds of millions of dollars in health care, education and other costs when immigrants are allowed to remain in the country illegally. The states that sued are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.

Those defending the program — the federal government, the Mexican American Legal Defense and Educational Fund and the state of New Jersey — had argued the states failed to present evidence that any of the costs they allege they have incurred have been tied to DACA recipients. They also argued Congress has given the Department of Homeland Security the legal authority to set immigration enforcement policies.

“We must all remain mindful that this lengthy lawsuit, and the precarious state of uncertainty in which it places DACA recipients, is largely the result of Congress indolently refusing to enact legislation — which has the overwhelming bipartisan support of the nation’s voters — to preserve the DACA recipients as permanent members and contributors in U.S. society,” Thomas A. Saenz, president and general counsel of MALDEF, said in a statement after the ruling.

Other immigrant advocacy groups including the Coalition for Humane Immigrant Rights, the New York Immigration Coalition and the National Immigration Law Center spoke out against Hanen’s decision Wednesday.

Democratic lawmakers including Rep. Chuy García of Illinois, Rep. Adam Schiff of California, Rep. Pramila Jayapal of Washington, Rep. Steven Horsford of Nevada and Rep. Frederica Wilson of Florida were quick to denounce Hanen’s decision on social media.

“This decision is terrible, but no surprise. DACA recipients can’t keep living in legal limbo. Congress must provide a path to citizenship,” García tweeted. “It’s important to note that even with this decision DACA is still intact, and DACA recipients can still renew their status.

“Home is here,” the Mexican American congressman added.

Despite previously declaring the DACA program illegal, Hanen had left the Obama-era program intact for those already benefiting from it. But he had ruled there could be no new applicants while appeals were pending.

There were 578,680 people enrolled in DACA at the end of March, according to U.S. Citizenship and Immigration Services.

The program has faced a roller coaster of court challenges over the years.

In 2016, the Supreme Court deadlocked 4-4 over an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the high court ruled 5-4 that the Trump administration improperly ended DACA, allowing it to stay in place.

In 2022, the 5th U.S. Circuit Court of Appeals in New Orleans upheld Hanen’s earlier ruling declaring DACA illegal, but sent the case back to him to review changes made to the program by the Biden administration.

President Joe Biden and advocacy groups have called on Congress to pass permanent protections for “ dreamers.” Congress has failed multiple times to pass proposals called the DREAM Act to protect DACA recipients.

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