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In latest attack on DACA, Texas judge declares the program ‘unlawful’

In latest attack on DACA, Texas judge declares the program ‘unlawful’

Deferred Action for Childhood Arrivals (DACA) faced another setback on July 16 when U.S. District Judge Andrew Hanen ruled in favor of Texas and an additional eight other states in preventing the U.S. from approving new DACA applicants.

New DACA applicants who did not get approved by July 16 will not be approved moving forward. Around 81,000 applicants have been left with a pending status. Many applicants had biometric appointments canceled, their application process delayed, and ultimately left unsure of their status. Current DACA students and students that have renewed or will be renewing their applications in the future will not be affected by the ruling. 

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“There are so many feelings that come with this new decision. DACA has been the longest rollercoaster that I have ever experienced,” co-executive director of the Dreamer Fund Gabriela Garcia said. “However, throughout the years all of the attacks on the program have dimmed that light and made it more obscure because you never know when this relief can be taken away by the court or the next president.”

Thousands of people demonstrate in San Francisco on Sept. 5, 2017, hours after Attorney General Jeff Sessions announced the termination of DACA. Photo: Drago Rentería

DACA has been under constant attack since the departure of the Obama administration. In 2016, the final year of Obama’s presidency, he attempted to expand DACA with DACA+ and Deferred Action for Parents (DAPA) but was barred by Mitch McConnell from appointing a new Supreme Court judge after Antonin Scalia died. With only eight members in the Supreme Court, it led to a 4-4 vote and seize the expansion of DACA. 

In 2017, President Donald Trump attempted to dismantle DACA, but in 2020 a 5-4 Supreme Court decision in Department of Homeland Security v. Regents of the University of California ruled that rescinding DACA was “arbitrary and capricious” under the Administrative Procedure Act. 

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“I was lucky to have been able to be present at the Supreme Court when they heard arguments on the DHS v. Regents of the University of California,” Garcia said. “Being there gave me hope because I thought our presence there would allow the justices and the rest of the nation to see our humanity beyond the legal arguments being made by the attorneys. At the same time, I knew that the challenges were far from over.”

The Supreme Court ruled that Trump’s attempt to end DACA was improper, but made it clear that DACA could be ended if done properly. Following the ruling, the state of Texas brought a lawsuit against the government, arguing that DACA was invalid from the very beginning. 

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One part of DACA is the promise not to deport someone for two years, while the second part is employment permission. Judge Hanen argued that there is a difference between prosecutorial discretion and deferred action. According to Hanen, DACA was invalid because Obama did not follow the Administration Procedures Act. 

“Hanen argued that if you want to do something substantive by giving someone a right like lawful status, you can’t do that unless Congress and immigration law says the president can do that,” Director of the Immigration and Deportation Defense Clinic at USF Law Bill Ong Hing said. “If any part of DACA was okay, it was only the part where they promised not to deport someone.”

Hanen also argued that the ability to be granted advanced parole, a pathway to citizenship for immigrants who entered the country without inspection, should never have been valid for DACA recipients.

“For many who had DACA they were happy to be able to apply for Advance Parole and visit their ailing relatives in an attempt to connect with them before it was too late,” Garcia said. “It was another glimpse of hope that this administration would see just how delicate DACA was and decided to take a stronger stand to fix our immigration system. But that has not happened, which makes this decision an even harder pill to swallow because we are tired of living in limbo.” 

If Hanen’s decision holds, advance parole would no longer be a viable option.

“Hanen acknowledged that his decision would be appealed so his decision ‘stayed’ his until the fifth circuit or possibly the supreme court would make their decision,” Hing said. “The only part that is final is that all new DACA applications can be received but not approved.”

San Francisco State University students who fall under DACA and have applied for DACA sought answers from the Dream Resource center on campus when the decision went through.

“There was a lot of ‘what does that mean for me, AB 540 Dream Coordinator Luis De Paz Férnandez said. “There were a lot of valid questions, but even though it is unfortunate news there is some more clarity to it.

Despite the bad news, the school has continued to support DACA students. SF State president Lynn Mahoney quickly worked with cabinet members to provide students with legal resource information while the student government promoted webinars for legal help. 

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“There is still a lot of anxiety and questions with this new decision,” Férnandez said. “We will continue to provide free legal services consultations for any students in need.”

Janette Vazquez, 28, a DACA recipient from San Francisco, who works as a personal trainer, chants at an emergency DACA rally at the intersection of Mission and 7th streets on Sept. 5, 2017. Vazquez said that she was, “fighting not only for my rights but everyone’s because we are Dreamers … fighting for a better future.” Photo: Drago Rentería

Congress remains the only hope for creating a permanent solution with a new body of legislation. The Dream Act could be part of legislation that is passed by Congress and signed by the president by the end of this year. It would be done by the budget reconciliation process which only requires 50 members of the Senate to be passed. The package could include the Dream Act, relief for TPS holders, farmworkers, and some essential workers. 

“I am very hopeful that this will all turn out okay by the end of the year,” Hing said.

If Congress does not intervene, many DACA recipients will lose their employment status in the next year. 

“DACA represents more than a work permit, it gives some small peace of mind that a person will not be taken away from their family,” Garcia said. “It gives some assurance that people will be able to keep their jobs in a pandemic that has left many jobless.”

President Biden addressed the nation Wednesday saying, “[Dreamers] should be able to stay in the United States of America.” 

Biden pledged to continue to fight for DACA. 

“We deserve another fair immigration reform to rebuild our hope for a better future,” Garcia said. “Every lawsuit filed against it is an attack on our humanity on our hopes to be us without having to worry about our status. The wins restore a little bit of hope but not all of it and it is getting harder to stay positive when so many attacks have been made against the program.”

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