A federal judge in the Southern District of Texas has again ruled that Deferred Action for Childhood Arrivals (DACA) is unlawful. The latest decision in the Texas v. United States case was issued on Sept. 13, 2023, and was narrowly focused on the legality of the DACA Final Rule. The court determined that the DACA Final Rule, which was published by the Department of Homeland Security (DHS) in October 2023 with the intent to “preserve and fortify DACA,” suffered from the same legal defects that led Judge Hanen to previously find the DACA program unlawful.    

In July 2021, Judge Hanen ruled that the 2012 DACA Memorandum was unlawful on both procedural and substantive grounds. While the DACA Final Rule may satisfy the Administrative Procedure Act’s procedural requirements, the rule largely preserves the DACA policies that have been in place since 2012. Thus, in Judge Hanen’s view, the DACA Final Rule does nothing to address the substantive concerns with the program’s legality. The ruling concludes that while the executive branch has the right to exercise prosecutorial discretion and grant forbearance from removal on a case-by-case basis, a program of DACA’s size and scope that provides a class of noncitizens with benefits such as employment authorization and advance parole may only be created by Congress. The DACA Final Rule did not address this concern and was not materially different from the 2012 DACA Memorandum that was previously found to be unlawful.    

DHS has been enjoined from granting DACA to new applicants since July 2021. The Supplemental Order issued this month expands the injunction and vacatur so that it includes the DACA Final Rule. In a statement issued on Sept. 18, 2023, U.S. Citizenship and Immigration Services (USCIS) confirmed that the agency will comply with the order. Therefore, the status quo remains the same. Current DACA recipients do not lose their deferred action or employment authorization. As long as they remain eligible, they may continue to renew their deferred action and employment authorization, and to seek advance parole in order to travel abroad. USCIS may still accept first-time DACA applications but is prohibited from approving any initial applications and related applications for employment authorization.  

While Congress fails to act, the litigation surrounding DACA will continue. The federal government is expected to appeal the court’s decision to the Fifth Circuit Court of Appeals, and it is likely that the case will eventually come before the U.S. Supreme Court. In the meantime, DHS has announced that it will comply with the Texas injunction.    

USCIS updated its DACA Litigation Information and Frequently Asked Questions.  

For more information on DACA, including Frequently Asked Questions regarding the Texas decision, visit CLINIC’s DACA webpage.