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The Fate of DACA

The Deferred Action for Childhood Arrivals program (DACA), originally created under President Obama in 2012, has survived its latest legal challenge – for now.

Though the Trump administration is still not taking new DACA cases, DACA recipients can remain in the United States and continue to apply for renewal of their DACA. On August 31st,2018 a Federal Judge in Texas ruled that he would not grant a preliminary injunction against DACA – a request made by the State of Texas and six other states. This request would have shut down the program immediately, leaving the millions of undocumented Americans with DACA in limbo.

The seven states that are suing to end DACA argue that the program, as a whole is illegal—and that they are experiencing irreversible harm at the hands of the federal government by its continued existence.  Particularly, their claim of harm rests on the argument that DACA recipients are causing strain on their government services. Thus, these states requested a nationwide injunction to block any DACA grants or renewals going forward.

The judge, Andrew Hanen, ruled that because DACA has been in practice for over six years, the states suing lost their chance to claim the preventative benefit of a preliminary injunction. Hanen also acknowledged that a large group of people would stand to suffer sudden harm should they lose the DACA benefits, which is what the injunction would cause.

However, in the same breath, Judge Hanen indicated that he does not believe that DACA was created lawfully because it did not undergo a “notice-and-comment” period, which he says was likely required under the Administrative Procedures Act. Notice-and-comment is a procedure that allows new administrative rules to be reviewed in the Federal Register and commented on by the public. President Obama at the time of the creation of DACA and those defending the rule now argue that this comment period was not required because DACA was a “general statement of policy” and not a rule as interpreted.

It is likely that the states that want to have DACA stopped will appeal this decision to the Federal Appeals court. Although it is hard to predict the outcome, the litigation will almost certainly eventually head to the U.S. Supreme Court.  With only eight justices currently on the Supreme Court, the timing and outcome of the DACA litigation is very uncertain. 

Our law firm stands ready to support this community, as we have done since DACA was first introduced. If you are seeking a DACA renewal or would like us to review your case, please do not hesitate to contact us.

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