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President Biden says the Department of Justice will appeal a federal judge’s ruling against the Deferred Action for Childhood Arrivals (DACA) program, which provides protection against deportation to hundreds of thousands of young immigrants known as Dreamers who were brought to the U.S. without documentation as children.
The judge ruled the program, which also provides the immigrants work authorization, illegal and ordered the Biden administration not to approve any new applications for the program. The ruling does not immediately affect current DACA recipients.
Biden said in a statement Saturday that the ruling “relegates hundreds of thousands of young immigrants to an uncertain future.”
U.S. District Judge Andrew S. Hanen ruled that former president Obama overstepped his executive authority in creating the program in 2012, ruling that “as popular as this program might be, the proper origination point for the DACA program was, and is, Congress.”
“Even after the implementation of the DACA Memorandum, Congress has continued to consider and reject proposals to protect a DACA-like population,” wrote Hanen, who was appointed by former president George W. Bush. “The Executive Branch cannot just enact its own legislative policy when it disagrees with Congress’s choice to reject proposed legislation.”
Hanen also ruled that the government was required to undergo notice-and-comment rule making in adopting DACA, which it did not do.
Biden issued an executive order in January directing agencies to take steps to “preserve and fortify DACA” following efforts by former president Trump -- ultimately blocked by the Supreme Court in a 5-to-4 decision -- to eliminate it.
The program only reopened to new applicants in December, and U.S. Citizenship and Immigration Services has reported considerable backlogs in adjudicating the flood of new applications. According to CBS News, USCIS reported a backlog of 81,000 pending first-time DACA applications at the end of June.
In addition to appealing the decision, Biden said the agency also plans to issue a proposed rule concerning DACA.
“But only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve,” Biden said in the statement. “I have repeatedly called on Congress to pass the American Dream and Promise Act, and I now renew that call with the greatest urgency. It is my fervent hope that through reconciliation or other means, Congress will finally provide security to all Dreamers, who have lived too long in fear.”
The Presidents Alliance on Higher Education and Immigration, a coalition of university presidents and chancellors, also called on Congress to “enact a roadmap to citizenship” for Dreamers “through all available mechanisms -- including budget reconciliation,” a procedure that requires a simple majority of 51 votes rather than a filibuster-proof 60 votes in the Senate.
The Presidents Alliance joined with the American Business Immigration Coalition in organizing a letter signed by more than 400 university presidents, CEOs and civic leaders urging Congress to take action on Dreamers’ behalf.
“This relief is particularly critical for the 98,000 Dreamers who graduate from high school every year and the 427,000 undocumented students enrolled in institutions of higher education,” the letter states. “These students are working diligently to advance themselves, including pursuing careers in health, STEM, and teaching, notwithstanding the uncertainty they live with regarding whether they will be able to complete their education, invest in beginning careers, businesses, and families, and ultimately become citizens.”
Texas lawmakers led a group of other states in filing the lawsuit against DACA.
“I think it’s right to stop a president who just decided that he didn’t like federal law & came up with his own immigration laws,” Texas attorney general Ken Paxton said on Twitter Saturday. “We sued him, rightfully so, for violating federal law and we won.”
The 2020 Supreme Court decision keeping DACA in place written by Chief Justice John Roberts found that the Trump administration had not followed appropriate procedures in seeking to end the program, having failed to provide a reasoned explanation for its actions as required under the Administrative Procedure Act.
Michael A. Olivas, the William B. Bates Distinguished Chair in Law emeritus at the University of Houston Law Center and author of a book about the legal and political history of DACA, argues that the logical implication of the Supreme Court ruling was that DACA is legal.
“Roberts and the majority held that the program could continue in perpetuity until it was unrolled properly through the APA,” Olivas said, referring to the Administrative Procedure Act. “There is no way the Supreme Court of the United States could have declared that this program could be rolled up through proper application of the APA if it were illegal.”
“The only resolution of this that’s going to square all the circles is for Congress to act, but that’s not new,” Olivas said. “There’s always been the sword of Damocles hanging over these kids.”