Monday, July 19, 2021

Will Judge Hanen's DACA Ruling Trigger Congressional Action?

At the end of last week, Judge Andrew Hanen blocked new applications for relief under the Deferred Action for Childhood Arrivals (DACA) policy.

The U.S. government has said it will appeal the ruling.

Cameron Peters for Vox summarizes the key points of Judge Hanen's ruling:

"In his 77-page opinion, district court Judge Andrew Hanen concluded that the Deferred Action for Childhood Arrivals program, or DACA, is unlawful because it violates the Administrative Procedure Act, which governs federal rulemaking, by evading the normal “notice and comment” process in adopting new rules.

Hanen’s decision doesn’t immediately affect the 616,030 people, often known as DREAMers, who are currently protected under DACA — but it does mean that the Department of Homeland Security can no longer approve new DACA applications or grant applicants the protections DACA provides."

in the end, will Judge Hanen's ruling lead to congressional action?

President Biden and Department of Homeland Security Secretary Alejandro Mayorkas are calling for congressional action: 


Official White House Photo

President Joe Biden issued the following statement on the ruling:

"In 2012, the Obama-Biden Administration created the Deferred Action for Childhood Arrivals (DACA) policy, which has allowed hundreds of thousands of young immigrants to remain in the United States, to live, study, and work in our communities. Nine years later, Congress has not acted to provide a path to citizenship for Dreamers.

Yesterday’s Federal court ruling is deeply disappointing. While the court’s order does not now affect current DACA recipients, this decision nonetheless relegates hundreds of thousands of young immigrants to an uncertain future. The Department of Justice intends to appeal this decision in order to preserve and fortify DACA. And, as the court recognized, the Department of Homeland Security plans to issue a proposed rule concerning DACA in the near future.

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. 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." (bold added).


Department of Homeland Security Secretary Alejandro Mayorkas issued the following statement:

“I am disappointed by yesterday’s ruling and its impact on families across the country, but it will not derail our efforts to protect Dreamers.  The Biden-Harris Administration—and this country—remain as committed as ever to ensuring that Dreamers are protected from the threat of deportation and are allowed to continue to contribute to this country that is their home.  DHS remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA.  The Department of Justice also intends to appeal yesterday’s order.  Moreover, we will continue processing DACA renewal requests, consistent with the ruling.  Still, only the passage of legislation will give full protection and a path to citizenship to DACA recipients.  In January, President Biden offered a legislative proposal, and in March the House of Representatives passed the 'American Dream and Promise Act.'  I urge Congress to act swiftly to enact legislation through the reconciliation process to provide permanent protection that the American people want and Dreamers have earned.” (bold added).
"In conjunction with its rulemaking, the government may choose to appeal Hanen's ruling, as President Biden has vowed to do. However, courts further up the ladder, including ultimately the Supreme Court, may choose to leave Hanen's decision and remedies in place until the government's rulemaking on DACA is final. That process—which under the Administrative Procedure Act would include notice of a proposed rule, comments by interested parties, and issuance of a final rule—could take up to two years to complete. In the meantime, unless Congress acts to codify DACA's benefits, recipients will be uncertain about their future."

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