U.S. District Judge Andrew Hanen last year declared the Deferred Action for Childhood Arrivals program illegal.
Last week, the 5th U.S. Circuit Court of Appeals said Hanen should take another look at DACA following revisions adopted by the Biden administration in August that were created to improve its chances of surviving legal scrutiny.
Hanen has scheduled a hearing Friday to meet with attorneys and discuss the next steps in the decade-long legal fight.
Hanen will likely ask lawyers for more information on the new DACA regulation, according to Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund who will be representing DACA recipients at Friday’s hearing.
“It’s a safe bet the judge is going to call for more filings and more legal arguments because he now has to take up the question of the legality of the Biden administration regulation,” Perales said.
But a timetable for how quickly those arguments need to be made and when Hanen would issue a final ruling will remain unclear until Friday’s hearing, Perales said. The new regulation is set to take effect Oct. 31.
Several advocacy groups planned to attend the hearing and gather outside the federal courthouse on Friday.
Hanen last year declared DACA illegal after Texas and eight other Republican-leaning states filed a lawsuit claiming they are harmed financially, incurring hundreds of millions of dollars in health care, education and other costs, when immigrants are allowed to remain in the country illegally.
They also argued that the White House overstepped its authority by granting immigration benefits that are for Congress to decide.
“Only Congress has the ability to write our nation’s immigration laws,” Texas Attorney General Ken Paxton said Thursday in a statement.
Hanen found DACA had not been subjected to public notice and comment periods required under the federal Administrative Procedures Act. But he left the Obama-era program intact for those already benefiting from it, pending the appeal. There were 611,270 people enrolled in DACA at the end of March.
A three-judge panel of the New Orleans-based appeals court upheld Hanen’s initial finding but sent the case back to Hanen so he could review the impact of the federal government’s new DACA regulation.
The new rule’s 453 pages are largely technical and represent little substantive change from the 2012 memo that created DACA, but it was subject to public comments as part of a formal rule-making process.
But even if Hanen were to issue a positive ruling on the new DACA regulation, the judge might still decide the program is illegal because it was not created by Congress, Perales said.
“Which is why so many right now are calling on Congress to act,” she said.
After last week’s appeals court ruling, President Joe Biden and advocacy groups renewed their calls for Congress to pass permanent protections for “Dreamers,” which is what people protected by DACA are commonly called. Congress has failed multiple times to pass proposals called the DREAM Act to protect DACA recipients.
Whatever Hanen decides, DACA is expected to go to the Supreme Court for a third time. In 2016, the Supreme Court deadlocked 4-4 over an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the high court ruled 5-4 that the Trump administration improperly ended DACA, allowing it to stay in place.
Adapted from reporting by the Associated Press