Federal judge again declares that DACA program for ‘Dreamer’ immigrants is illegal

A federal judge has declared illegal a revised version of the DACA program, which protects hundreds of thousands of immigrants who arrived irregularly as children in the United States. The decision of the judge, from the southern circuit of Texas, does not affect people already enrolled in the program, but it does prevent new applicants from registering and deals a serious blow to the administration of President Joe Biden.

The Democratic government had introduced this revised version last year precisely to “preserve and strengthen” Deferred Action for Childhood Arrivals, or DACA, and prevent Republicans — who are highly critical of the measure — from eliminating that program, which was launched in 2012, during the Obama administration (2009-2016).

Nine states governed by the Republican Party, including Texas, sued to block the provision. They argued that Barack Obama's government did not have the authority to implement the program because it did not submit it to Congress for approval.

In 2021, Judge Andrew Hanen determined that DACA was illegal because it had violated the Administrative Procedure Act, which requires a notice period during which the public can submit comments on the new rule. The Biden administration approved the new version of DACA last year, which did include a period for public comments.

But in January, nine states — Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi — filed a new lawsuit against the measure. Hanen, who was appointed to his position in 2002 by then-president George W. Bush, ruled Wednesday that the DACA program remains illegal and that the power to approve legislation that protects immigrants who arrived as children corresponds to Congress, not the government.

According to data from the Citizenship and Immigration Services, at the end of March, 578,680 immigrants were enrolled in the program, which allows them to reside and work in the United States. Although they arrived in the country as minors, many of these beneficiaries, popularly known as the “Dreamers,” are now adults.

The nine states allege that they are negatively affected by the DACA program because it forces them to spend hundreds of millions of dollars on health, education and other services to immigrants in an irregular situation.

Defenders of the program, however, argue that these states have not been able to unequivocally show that these expenses are related to DACA or its beneficiaries. With respect to the argument that Congress is the highest authority on immigration, DACA defenders claim that Congress has precisely given powers to the Department of Homeland Security to establish immigration policies.

Since it came into force, DACA has gone back and forth in the courts. In 2016, the Supreme Court failed to agree on a version that would have expanded the program. Four years later, in 2020, the Supreme Court determined that Donald Trump’s administration had unlawfully canceled the measure, which allowed it to remain in place.

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