A revised version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children is set to be debated Thursday before a federal judge who previously ruled the program illegal.
Attorneys representing the nine states that have sued to end the Deferred Action for Childhood Arrivals program, lawyers for the U.S. Justice Department and DACA recipients were scheduled to appear at a court hearing before U.S. District Judge Andrew Hanen.
In 2021, Hanen declared DACA illegal, ruling that the program had not been subjected to public notice and comment periods required under the federal Administrative Procedures Act. Hanen also said the states seeking to stop it had standing to file their lawsuit because they had been harmed by the program.
The states claimed they incur hundreds of millions of dollars in health care, education and other costs when immigrants are allowed to remain in the country illegally. The states that sued are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.
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The 5th U.S. Circuit Court of Appeals in New Orleans upheld Hanen’s ruling in 2022 but sent the case back to him to review changes made to the program by the Biden administration.
The new version of DACA took effect in October and was subject to public comments as part of a formal rule-making process.
In court filings, Texas and the other states argued that the updated program is essentially the same as the 2012 memo that first created it and remains "unlawful and unconstitutional." The states also argued that the White House overstepped its authority by granting immigration benefits that are for Congress to decide.
The U.S. Justice Department argued in court filings that the states failed to show any direct injury because of DACA and that Congress has given the Department of Homeland Security the "authority and duty to set immigration enforcement policies."
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"DACA is lawful. DACA is consistent with the many policies of the U.S. government in the past under different presidents," said Nina Perales, with the Mexican American Legal Defense and Educational Fund, who will be speaking before Hanen on behalf of DACA recipients.
Hanen has left the Obama-era program intact for those already benefiting from it. But he ruled there can be no new applicants while appeals are pending.
There were 580,310 people enrolled in DACA at the end of December, according to U.S. Citizenship and Immigration Services.
Hanen is not expected to immediately rule after Thursday’s court hearing. But whatever decision he makes is expected to end up before the U.S. 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.
President Joe Biden and advocacy groups have called on 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.
