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Journalism of Courage
A policy that allowed young undocumented immigrants to live and work in the United States, called Deferred Action for Childhood Arrivals (DACA), has been declared illegal by a US court.
In a Wednesday (September 13) judgement, Hanen said the policy can still be administered to individuals who received their initial DACA status before July 16, 2021. “The defendants [the US government] may continue to administer the programme as to those individuals, and that administration may include processing and granting DACA renewal applications…” Hanen ruled, in a case filed by several US states against the federal government.
Since its inception under then-US President Barack Obama in 2012, DACA has come under legal challenge multiple times. Here is what it states, how it impacted migrants and what is likely to happen now.
On June 15, 2012, the US Secretary of Homeland Security announced that upon meeting certain requirements, people who came to the United States as children illegally can request deferment or delay in legal action against them for a period of two years, subject to renewal.
At the time, Obama said in a speech that the move was to “mend our nation’s immigration policy, to make it more fair, more efficient, and more just – specifically for certain young people sometimes called ‘Dreamers’”. Dreamers derives from the Development, Relief and Education for Alien Minors (DREAM) bill, which aims to make permanent legal residency possible for undocumented immigrants to the US.
Over the years, the bill has been introduced in the US legislature but has never passed. After another such failure, the Obama administration introduced DACA in 2012.
The government agency US Citizenship and Immigration Services (USCIS) lists certain criteria for qualifying for DACA. For example, the person must be under the age of 31 as of June 15, 2012, they should have come to the United States before their 16th birthday, they should have certain educational qualifications, not been convicted of a felony, significant misdemeanour and “do not otherwise pose a threat to national security or public safety”.
According to the USCIS, such people are then eligible to request work authorisation and legally hold a job. It described deferred action as an exercise of “prosecutorial discretion”, to defer removal action against an individual for a certain period of time. “Deferred action does not provide lawful status,” it said.
In his 2012 speech, Obama said of “Dreamers”: “They were brought to this country by their parents – sometimes even as infants – and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.” Therefore, it was argued that such people deserved at least a deferment against punishment or deportation.
Since then, hundreds of thousands of people have been given DACA permits from countries in Central and South America. SAALT states that approximately 2,40,000 undocumented Indians were living in the US in 2011, making India the seventh-highest country of origin for undocumented individuals in the United States. Only a few thousand Indians have made use of DACA permits.
The focus on the issue of dreamers also stems from the fact that immigration has been a deeply political issue in the United States, with the Democratic Party (of President Joe Biden) seen as more liberal towards it and the Republic Party against undocumented immigration, in particular.
However according to Pew Research Centre’s data, on the whole, many people across party divides hold some common views on the matter. A majority (73 per cent) of those polled from both parties believe in enforcing border control strictly on the US-Mexico border.
Also, around 72 per cent say taking in refugees who are trying to escape violence and war should be an important goal for the immigration system. For a similar number, allowing immigrants who came to the country illegally as children to remain in the US and apply for legal status – similar to what DACA says – is also important, Pew said. Although, Democrats are more supportive of these policies than Republicans.
Saying it was “deeply disappointed” in the ruling, the White House recently said in its press statement: “On day one of his administration, President Biden issued a memorandum directing the federal government to take all appropriate actions to ‘preserve and fortify’ the DACA policy.”
“As we have long maintained, we disagree with the District Court’s conclusion that DACA is unlawful, and will continue to defend this critical policy from legal challenges. While we do so, consistent with the court’s order, DHS (Department of Homeland Security) will continue to process renewals for current DACA recipients and DHS may continue to accept DACA applications.”
Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi – states whose voters have traditionally supported the Republican Party – sued the federal government in the latest legal challenges.
They argued that the Obama administration didn’t have the authority to create the programme and that it had circumvented the US Congress. In 2021 too, Judge Hanen had declared the programme illegal, ruling it had not been subject to public notice and comment periods.
The Biden administration tried to satisfy Hanen’s concerns with a new version of DACA that took effect in October 2022 and was subject to public comments as part of a formal rule-making process. But Hanen, who was appointed by then-President George W Bush in 2002, ruled the updated version of DACA was still illegal as the Biden administration’s new version was essentially the same as the old version.
Further, the nine states also argued Congress has given the Department of Homeland Security the legal authority to set immigration enforcement policies and that it led to increased expenditure on their part for these immigrants. This judgement is expected to be appealed in the US Supreme Court – and not for the first time.
Earlier in 2016, the Supreme Court deadlocked 4-4 over an expanded DACA and a version of the programme for parents of DACA recipients, introduced under the Obama administration. But his successor Donald Trump was critical of the programme, reflective of his larger anti-immigration stance. His administration attempted to end DACA in 2017 through an order but in 2020, the Supreme Court ruled by a 5-4 majority that this was done improperly and allowed DACA to stay.
Justice Hanen then ruled in 2021 that DACA was illegal, after multiple states challenged it. In 2022, the 5th US Circuit Court of Appeals in New Orleans upheld his ruling but sent the case back to the judge to review changes made by the Biden administration.
In their defense of the program, the federal government, the Mexican American Legal Defense and Educational Fund and the state of New Jersey said the states failed to present evidence that any of the costs they allege they have incurred have been tied to DACA recipients.
“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote in his latest ruling. “The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation… The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”
(With Associated Press inputs)
