A federal judge’s decision against the DACA program injected new urgency into Congress‘s desire to give “Dreamers” a permanent legal solution — but the court ruling did nothing to overcome the deep divisions that have blocked every attempt over the last decade.
That puts the program back on the same footing as it had during most of the Trump administration — and it tosses a political hand grenade into the laps of lawmakers on Capitol Hill.
Immigrant-rights activists have already declared a DACA replacement to be a must-pass priority for the Democrats who now control Washington.
“Dreamers are the fabric of this nation and they deserve better,” said Lydia Guzman, with the League of Latin American Citizens (LULAC). “The ball is in the Senate’s court to pass a Dream Act that will protect Dreamers. Their home is here.”
President Biden also chimed in with a call to action, saying “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.”
He’s urging that to be part of a massive legalization covering all 11 million illegal immigrants, or at the very least part of a package of bills covering some 3 million Dreamers, farmworkers and migrants here under Temporary Protected Status.
That smaller package of bills has already cleared the House, and Mr. Biden said over the weekend that he wants to see it become part of the budget bill Democrats have begun writing. That could circumvent a filibuster and allow it to be passed without any GOP support.
But the current migrant border surge Mr. Biden is facing — and which experts trace back to his lax immigration enforcement policies — complicated those calls for action.
Sen. Lindsey Graham, a key Republican who has worked with Democrats on immigration in the past and has been the lead sponsor of legislation legalizing Dreamers, said Sunday that Democrats will have to step up with serious border security if they want GOP cooperation.
“Here’s what I want. I want you to finish the wall, which needs to be finished, and end catch-and-release for the asylum seekers, which will shut off a wave of illegal immigration, and I will vote for DACA legalization,” Mr. Graham said on Fox Business’s “Sunday Morning Futures.”
But Mr. Graham said he’s not getting any takers from Democrats. He said it’s because Democrats have become “the party of open borders.” He specifically blamed left-wing lawmakers such as Rep. Alexandria Ocasio-Cortez and Sen. Elizabeth Warren for leading their party away from border security.
That leaves the politics effectively the same as the last 15 years.
Attempts to pass broad bills legalizing millions of illegal immigrants failed in 2006, 2007 and 2013. Attempts to pass smaller bills legalizing Dreamers have faltered nearly every year.
That effort came closest to success in 2018, when then-President Trump said he would support a full pathway to citizenship for DACA recipients in exchange for border wall funding, limits to the chain of family migration and an end to the visa lottery that doles out green cards by chance.
Democrats said that was too high a price to pay for legalizing Dreamers.
That’s left DACA recipients in limbo.
The program, officially known as Deferred Action for Childhood Arrivals, applies to illegal immigrants who arrived before mid-2007 and had been in the country for five years and were under 31 years of age when DACA became active in 2012. The applicants were to have kept a relatively clean criminal record and to have pursued education.
Under DACA they have a two-year stay of deportation and get some taxpayer benefits, giving them a chance to embed into society, though it is not permanent legal status. It is, however, able to be renewed, and some Dreamers have been on DACA status for nearly nine years at this point.
The Obama administration created the program through a Homeland Security memo, claiming it was exercising “prosecutorial discretion” not to pursue immigration consequences of deportation against Dreamers.
Judge Hanen ruled that was a major policy change that should have gone through the full regulatory process, and he said because it didn’t, it violated the Administrative Procedures Act.
“Accordingly, the court holds that DHS was required to undergo notice and comment rulemaking in order to adopt DACA. DHS failed to engage in the statutorily mandated process, so DACA never gained status as a legally binding policy that could impose duties or obligations,” the judge wrote.
But he also ruled that because Dreamers have relied on DACA for protection, he would not dissolve it immediately, creating the window of space for Congress to act.
As of March 31, there were 616,030 people with active DACA protections.
During the Trump years, current DACA recipients were allowed to renew but, for the most part, newly eligible Dreamers were blocked from applying. The Biden administration had begun accepting new applications, though the slow pace of approvals had angered immigration activists.
Judge Hanen’s decision wasn’t a surprise. In 2015 he had ruled a broader Obama-era deportation amnesty, known as Deferred Action for Parents of Americans, or DAPA, illegal for the same reasons that he found DACA illegal.
That 2015 decision was confirmed by the 5th U.S. Circuit Court of Appeals, and later affirmed by an evenly divided 4-4 Supreme Court.
The Biden administration says it will appeal Judge Hanen’s new ruling.
Homeland Security Secretary Alejandro Mayorkas also vowed to go back and recreate the DACA program lawfully, checking off all the procedural boxes the Obama team skipped, according to Friday’s ruling.
“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,” Mr. Mayorkas said.
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