DACA was originally created through Executive Action by former President Obama in 2012. It was put in place to provide both work authorization and protection from deportation to the hundreds of thousands of undocumented children brought to the U.S. before June 15, 2012. DACA has once again received some pushback, this time from a District Court in Texas (State of Texas, et al. v. The United States of America, et. al Civil Action Number 1:18-CV-00068, (S.D. Tex. July 16, 2021)). This isn’t the first time that DACA has been challenged.
In September 2017, then-Attorney General Jeff Sessions advised the Department of Homeland Security (DHS) to rescind DACA. The decision was based on his conclusion the program was effectuated without proper statutory authority and was unconstitutional. DHS’ Acting Secretary issued a memorandum terminating the program on that basis.
DHS’ decision to rescind DACA ultimately wound up before the U.S. Supreme Court. In June of 2020, Chief Justice Roberts authored the Court’s majority opinion wherein he concluded that DHS violated the Administrative Procedure Act (APA) by failing to give detailed justification for their decision in terminating DACA. (Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 207 L. Ed. 2d 353 (2020)). The decision to terminate DACA was rescinded, and people could apply once again. The Court did not offer its opinion on the actual validity of DACA and appropriately noted that this was for the legislative branch of our government to decide.
On July 16, 2021, a district court in Texas issued a ruling enjoining DACA, once again halting the adjudication of first time applications. It is important to note this is not a final decision on whether DACA will survive. The federal judge also made it clear that his decision does not impact those who presently hold DACA. No action will be taken against current DACA recipients and in fact may continue to submit renewal applications. As for initial DACA applications, they can be submitted but no decision will be made on them at this time.
Although the federal judge’s decision is disappointing, it might be what Congress needs to help them feel a sense of urgency to enact an immigration reform bill that addresses DACA once and for all. Additionally, the decision will be appealed by the Biden Administration and may find its way back up to the United States Supreme Court. As Justice Roberts noted, “thousands of young people have come to rely on DACA, emerging from the shadows to enroll in degree programs, embark on careers, start businesses, buy homes, and even marry and have children of their own who are U.S. citizens, not to mention that DACA recipients pay $60 billion in taxes each year.” As out of touch as some politicians appear to be, there is no way that Congress is blind to these realities and as a result, must do something to resolve this matter. We just have to be patient until they do. In the meantime, don’t panic.
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ABOUT THE AUTHOR(S)
Derek Poulsen is the managing attorney of Wilner & O’Reilly, APLC San Diego Office Location. He focuses his practice 100% on Immigration Law. He graduated from Utah State University where he earned his Bachelor of Arts degree in Sociology with a Minor in Spanish. He earned his Juris Doctor degree from Creighton University School of Law. During law school, he was selected to be on Creighton’s National Trial Team and earned the Honorable Lyle E. Strom Trial Advocacy Award. His previous practice included criminal defense, where he gained valuable knowledge of the negative immigration consequences that differing criminal activity has on an individual’s ability to remain in the United States.
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC, and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court. Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.