A McAllen immigration attorney says the DACA program is “in jeopardy” because of a federal judge’s latest ruling.
“It’s definitely in limbo,” immigration attorney Carlos Moctezuma Garcia said. “A lot of people run the risk of losing the benefit that they’ve gained from DACA. These are students at UTRGV … doctors, lawyers, teachers, principals, nurses, construction workers, accountants.”
Garcia said DACA recipients run the risk of losing their work permit, based on the decision made on the case in which Texas and other states sued the United States.
Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas filed on Sept. 13 a decision finding the Deferred Action for Childhood Arrivals (DACA) Final Rule unlawful.
“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 stated in the Sept. 13 ruling. “Congress, for any number of reasons, has decided not to pass DACA-like legislation.”
DACA, an executive order issued by President Barack Obama in 2012, prevented the deportation of hundreds of thousands of immigrants brought into the United States as children and granted them temporary permission to legally stay in the country.
Hanen stated the court must continue to “interpret the law and the Constitution as written.”
“The Final Rule was purposefully designed to preserve the 2012 DACA Memorandum as written,” Hanen wrote. “While the Final Rule may have used somewhat different wording … the substantive portions are materially the same as the 2012 DACA Memorandum.”
He determined that there “are no material differences” between the 2022 Final Rule and the 2012 DACA memorandum and held that the 2022 DACA rule is unlawful.
Hanen ended the ruling stating the “order nor the accompanying supplemental injunction requires the DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that would otherwise not be taken.”
On May 1, 2018, Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia filed a lawsuit against the United States, the secretary of Homeland Security, the commissioner of U.S. Customs and Border Protection, the deputy director and acting director of the U.S. Immigration and Customs Enforcement, the director of U.S. Citizenship and Immigration Services and the acting chief of the U.S. Border Patrol. The plaintiffs asked the court to issue:
–an order enjoining Defendants from issuing or renewing any DACA permits in the future;
–a declaratory judgment that DACA violates the Take Care Clause;
–a declaratory judgment that DACA is procedurally unlawful under the APA;
–a declaratory judgment that DACA is substantively unlawful under the APA; and
–any and all other relief to which plaintiff states may be entitled.
Garcia represents intervenor defendant Karla Perez, “a DACA recipient at the time.”
“In this case, the State of Texas sued the United States of America … because the United States of America was the entity that implemented DACA,” he said. “The State of Texas was one of the states that decided to sue the United States government, because they felt that the program was unconstitutional. And so the intervenors … are the people that are actually being affected by this case.
“DACA recipients were actually not part of the original case until they intervened, and they intervened through the help of the attorneys representing them, which I am part of,” he said. “But the main organization that’s leading that charge is MALDEF, which is Mexican American Legal Defense and Educational Fund.”
THE RIDER FILE PHOTO
On July 16, 2021, the U.S. District Court for the Southern District of Texas held that the DACA policy is illegal, according to the Department of Homeland Security.
“The judge had previously ruled that it was illegal,” Garcia said. “We were arguing that because there was a new memorandum that, essentially, the program would be able to move forward. But the judge did not agree.”
He said there “is a possibility” the court’s decision could be overturned.
“The way this process works is now that the judge denied the case, the case is going to be appealed to the 5th Circuit Court,” Garcia said. “After the 5th Circuit Court of Appeals makes a decision on the case, then the case will be appealed to the Supreme Court of the United States. … This case will likely end up at the Supreme Court.”
“DHS will continue to accept the filing of both initial and renewal DACA requests,” its website states. “However, pursuant to the July 16, 2021 order from the Southern District of Texas, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization.”
The ruling does not put an end to the DACA program, allowing nearly 600,000 recipients to continue renewing their applications, according to the U.S. Citizenship and Immigration Services website.
Garcia said the decision affects people who are eligible for DACA.
“The United States government cannot review their application and determine whether they qualify or not,” he said. “So anybody who currently does not have DACA can’t get DACA anymore.
A 22-year-old DACA recipient, who was brought to the Rio Grande Valley when she was “about 3 to 4 years old,” said the program gave her more opportunities for an education.
During her freshman year in high school, there was a field trip to College Station but she could not attend.
“I wasn’t allowed to go on that field trip because I wasn’t from here,” she said. “And that’s how I got introduced to DACA. One of my teachers actually did it for me the first time. She introduced me to it, but I had already known about it because my sister [and] my brother had already gotten DACA.”
The DACA recipient has been in the program for seven years and disagrees with Hanen’s ruling.
Another DACA recipient, a 28-year-old mother of two who is expecting another child, has been in the program for about six years.
She was 11 years old when her single mother brought her and her brothers to the Rio Grande Valley.
When she first applied for DACA, she was not accepted because she needed a lot of paperwork. It was not until the second time she applied that she got into the program.
“It has helped us a lot,” the 28-year-old said. “We can work here legally. We have our Social Security. We pay taxes like everyone else. I have my license. I can be here with peace of mind with my children because I will no longer be afraid of being deported or something like that.”
She feels “hurt” by Judge Hanen’s decision and said she has a friend who is a single mother and has been impacted by the ruling.
“She has two jobs and she was able to send her paperwork but, unfortunately, since [the applications] stopped, they just stayed there,” the 28-year-old DACA recipient said.
THE RIDER FILE PHOTO
In a news release after the Sept. 13 ruling, Homeland Security Secretary Alejandro N. Mayorkas stated he was “disappointed by the ruling and uniquely qualified to say that DHS believes DACA is lawful and Constitutional.”
“The ruling preserves the stay, which means current DACA recipients will not lose their protection from removal,” Mayorkas stated. “But this ruling does undermine the security and stability of more than half a million Dreamers who have contributed to our communities. The United States is the only home they have ever known.”
He also stated Congress failed to act and now Dreamers face an uncertain future “waiting to receive the permanent protection they deserve.”
“Consistent with the ruling, USCIS will continue to process DACA renewals, and DHS will continue to advocate on behalf of DACA recipients every day, in the courts and through our actions,” Mayorkas stated. “We stand ready to work with Congress on an enduring solution for our Dreamers.”
The Biden administration expressed its disappointment with the ruling.
“On day one of his Administration, President Biden issued a memorandum directing the federal government to take all appropriate actions to ‘preserve and fortify’ the DACA policy,” White House Secretary Karine Jean-Pierre stated. “The Administration has defended the DACA policy from legal challenges, and issued a final rule codifying this longstanding policy.”
Hanen wrote on the supplemental order of injunction filed on Sept. 13 that “a final judgment has not been entered in this case, so all matters not being addressed by an appellate court are still pending in this Court and subject to its jurisdiction.”
