DACA is restored, but is the program safe?

On December 4, 2020, a federal court in New York ruled to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program after years of legal battles and uncertainty for hundreds of thousands of DACA beneficiaries. The ruling is the latest chapter of a legal battle against the Trump administration, which has sought to terminate the program since 2017. Immigration advocates have fought not only to challenge the termination of the program but also to force the administration to allow new applications to be accepted once again. The court's ruling does just that and more, with USCIS posting a notice on December 7th that they are indeed accepting initial DACA applications and applications for travel on advance parole and reinstating DACA to a two-year program. 

Does this mean that the DACA program is safe? Well, that remains to be seen, as yet another court is considering a legal challenge with respect to the legality of the program. On Tuesday, December 22nd, a U.S. District Court in Texas heard a case brought by Texas Republican Attorney General Ken Paxton and eight other states seeking to end the program and claiming it is a drain on state resources and violates federal law.

The legal challenge in Texas is significant, not only as a threat to the program but as an important legal ruling on whether or not programs like DACA can exist moving forward. Advocates seeking to defend the program include the Mexican-American Legal Defense Fund (MALDEF). “This case is an attack on the underlying legality of DACA itself,” said Nina Perales, a lawyer for MALDEF when interviewed by CBS News. “This case seeks a ruling that DACA is unlawful that would bind any future administration.” 

That means a ruling by the Texas court could potentially impact any future version of the program by the Biden administration, which has repeatedly stated that Biden intends to restore and protect the program fully. 

A negative ruling by the Texas court could potentially put the DACA program back into limbo and could result in an appeal by advocates like MALDEF or the creation of a different replacement program by the Biden administration that could withstand legal challenges.

Andrew Hanen, the Judge presiding over the case, previously issued a ruling in 2015 invalidating the expansion of the DACA program and the implementation of the DAPA program to parents of U.S. citizens and lawful permanent resident children. However, Judge Hanen has also previously denied requests by Texas to temporarily block the DACA program while the lawsuit continued.

In addition to the legal challenges, the ultimate fate of DACA recipients, who still lack a true path to citizenship, is in the hands of Congress. The January 5th runoff election in Georgia is potentially set to determine control of the Senate and perhaps the long-term fate of DACA and its beneficiaries. Regardless of what the outcome of the pending case in Texas is, the ILD team will work closely with national advocates and with our clients to continue to demand long term immigration relief and options for all.. 

See a list of previous legal challenges brought against DACA in Federal Courts compiled by MALDEF here.