September 2023 DACA Court Decision

On September 13, 2023, the Southern District Court of Texas reaffirmed its earlier finding that the DACA (“Deferred Action for Childhood Arrivals”) program was illegal.

The court was reviewing DACA once again to see if new regulations published by the Department of Homeland Security (“DHS”) would have changed its prior conclusion that DACA was unlawful. In its September 13 decision, the court found that the new regulations did not change its position.

So what does this mean for DACA holders? Our immigration attorneys at Pelton + Balducci explain below.

The Southern District Court of Texas’ principal issue is its view that DACA was essentially a new law. However, this “law” was created by the President and the Executive Branch, which are not allowed to write laws. Only Congress can do that.

DHS’ argument is that DACA is not a new law. Rather, it is merely a formal statement of its priorities for the enforcement of already existing immigration law. Just as criminal prosecutors often have formal policies to implement their priorities (e.g., by setting rules for who can participate in their diversion programs), DHS can establish formal policies for deciding in which instances it will pursue removal.

Indeed, “deferred action” preexisted DACA.

Now it’s for the 5th Circuit (and likely the Supreme Court) to decide DACA’s legality.

This most recent decision did not change the current state of DACA. For now, DACA will continue to operate as it had prior to the court’s decision.

Specifically, this means:

The continued survival of DACA is a relief, but its future is extremely uncertain. More fundamentally, DACA provides no path to permanent status in the U.S. It only provides work authorization, which can be renewed every two years… so long as the program survives.

Dreamers – and the United States – need a more permanent solution. DACA holders have been present in the U.S. at least since June 15, 2007. The very youngest DACA holder is 16 years old, while the oldest is 32. At this point, those who have DACA have a long history in the U.S., including formative years as children and teens. The sudden loss of DACA would be devastating for them and those who love and depend on them.

We continue to rely on DACA, because Congress has been unable to agree on legislation to protect young arrivals to the U.S. 74% of Americans support providing lawful status to Dreamers.

It’s understandable to look at the current state of DACA with cynicism – as yet one more area where Congress is unable to take meaningful action to address the fundamental challenges of our country.

However, there is hope in DACA’s survival, such as it is. Despite several years of legal challenges, DACA has not gone away, nor has its popularity.

Most people recognize that it would be wrong to revoke the program, because DACA holders are integral to our country. They are our family members, friends, colleagues, and members of our community who add meaning and value to the experience of the rest of us in the United States. This argument, of course, is not limited only to DACA holders, but applies more broadly to so many of the immigrants among us – individuals whose departure from the U.S. would hurt and impoverish our communities.

The September 13 decision means that Dreamers and their supporters must continue to advocate for their path to status. In the struggle of Dreamers, we should also recognize the struggle of other immigrants, who are building and enriching our communities, despite their lack of lawful status. In this way, the Dreamers’ struggle could serve as a foundation for broader advocacy for a sensible immigration system that is not only humane, but that is based in the reality of our interdependence with our immigrant neighbors.

This is not the struggle of Dreamers and of immigrants alone. Relief for Dreamers and other immigrants will also depend on the support of allies. You can take action now by clicking this link to contact your members of Congress.

If you or someone you know is a DACA holder seeking clarity and assistance in navigating the intricacies of the recent DACA ruling or a more permanent form of immigration status, our dedicated immigration team is here to guide you. We’re committed to providing you with the knowledge and support needed to secure your future in the United States. Your journey begins with a simple call or message – take action now and let us stand with you on the path to a brighter tomorrow.