Another judge declares DACA illegal

When Pamela Chomba, then 11, and her family visited the United States on tourist visas in 2001, they didn’t return to Peru after their visas expired. Instead, her family looked for work, and Chomba began attending U.S. schools. Soon after Chomba graduated college in 2012, President Barack Obama stood in the White House Rose Garden and announced the Deferred Action for Childhood Arrivals (DACA) program, which protected Chomba from deportation. She applied for work authorization and received a Social Security card for the first time.

Now, Chomba is a homeowner in Washington, D.C., and the director of special projects for FWD.us, a bipartisan organization advocating for immigration and criminal justice reform. Every two years, she has reapplied for DACA and paid the required $495 fee. Her life is stable, but she knows that could all change. “I can’t plan a future because DACA hangs in limbo,” she said.

Last Wednesday, U.S. District Judge Andrew Hanen declared the DACA program illegal for the second time. While current recipients can still renew their status, no new applicants can enter the program as it winds through the appeals process. The legal battle will likely go all the way to the Supreme Court, which has already heard arguments on the program twice. In the meantime, DACA recipients are living in limbo, while the number of individuals brought to the United States illegally as children is rapidly expanding.

When Obama created the program, he directed immigration officials to exercise prosecutorial discretion by not enforcing the nation’s immigration laws against individuals brought to the United States illegally before they were 16 years old. Immigrants could apply for the program if they were 30 years old or younger and had resided in the United States for at least five years before DHS released the memo. DACA recipients receive a Social Security card and can apply for work status and earn their driver’s license.

The program’s current legal challenge began in 2018 when a coalition of nine Republican-leaning states sought to end DACA. In 2021, Hanen ruled the Obama administration had overstepped its authority in launching the program—created by a Department of Homeland Security memo—since the president did not subject it to public notice and comment periods required under the Administrative Procedure Act.

President Joe Biden appealed the 2021 ruling to the 5th U.S. Circuit Court of Appeals and published a new rule in the federal register that turned the program into a federal regulation. The appeals court told Hanen to take another look at DACA in light of the new regulation. Hanen argued that the Biden administration did not have the authority to fortify the Obama-era program. Now, the program is once again on its way to the appeals court with a final stop anticipated at the nation’s highest court.

“It’s likely that that will take years,” said Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute.

Though the Supreme Court has already considered DACA twice, it has yet to rule on whether the program is legal. A stalemate prevented it from deciding whether the Obama administration could expand DACA in 2016 and create another program for the illegal immigrant parents of children born in the United States. The split decision sent the case back to the appeals court and left in place the lower court’s decision in favor of the states challenging the programs. As a result, the programs did not go forward. But the original version of DACA continued. The justices considered the program again in 2020 after President Donald Trump attempted to end DACA in 2017. Chief Justice John Roberts, siding with the then four liberal justices, argued the administration had unlawfully ended the program. Again, the court declined to rule on the legality of the program itself.

Eleven years into the program, the number of DACA recipients is dropping. The government has approved more than 835,000 immigrants for DACA since its creation in 2012. By 2017, the number of active participants had fallen to about 690,000. Today, about 580,000 individuals are enrolled. The government has not updated the cutoff eligibility date for the program and court decisions bar anyone new from applying

Chomba with FWD.us attributes the decline to the confusion accompanying every new court decision. Recipients who do not renew their status within one year after their employment authorization expires lose their status, and Hanen’s ruling currently bars them from applying to rejoin the program. Some people can’t keep up with the recurring $495 fee.“It’s hard to negotiate, do I pay my electric bill for three months or get DACA,” said Chomba.

Nearly 120,000 individuals brought to the United States illegally as children graduated high school this year—the first graduating class not eligible for DACA. About 100,000 illegal immigrants will graduate from high school each year for the next three years without any way to legally enter the workforce, according to FWD.us. More than 3.4 million illegal immigrants came to the United States as children. Most of them do not qualify for DACA.

“The DACA program was always going to be a temporary program. And it only protects a pretty small share really, of unauthorized immigrants in the country,” said Gelatt with the Migration Policy Institute.

Only Congress can create a lasting solution for DACA recipients and other illegal immigrants who arrived in the United States as children. If the Supreme Court overturns DACA, Congress may feel more pressure to act, said Theresa Cardinal Brown, a senior adviser for immigration and border policy with the Bipartisan Policy Center. “It was meant to be a temporary program until Congress passed legislation,” she added.

Until Congress acts, the administration could protect some DACA recipients by designating their countries for temporary protected status, which allows foreign nationals to remain in the United States due to war, environmental disasters, or other extraordinary conditions.

“Anything that this administration or frankly, any other administration does, is a stopgap,” she said. “It’s not meant to give them status. It can’t. Only Congress can grant that. And that comes down to the will of Congress to get it done.”

Last week’s ruling didn’t surprise Chomba. But the uncertainty doesn’t get easier. “You can live a life and you can have happy moments,” she said. “You know there’s something pending. And all of a sudden that something becomes very real.”