A Texas judge unexpectedly declined to issue an immediate halt to the Deferred Action for Childhood Arrivals (DACA) program today. The Obama-era executive initiative defers deportation actions for some U.S. residents who entered without documentation as children. This is one of four cases outstanding over DACA.
With the Supreme Court almost certain to weigh in, and having earlier said lower courts needed to make their determinations, DACA likely remains in force through at least mid-2019. That’s the earliest that the highest court could issue an opinion if any of the cases are decided by spring.
The surprise comes in part because U.S. District Judge Andrew Hanen, appointed by George W. Bush, said he believes DACA is illegal, and that it would be struck down after it is litigated in his court. The judge said that Congress should ultimately make a decision on DACA, and that it is “one that Congress should consider saving.”
However, he said he wouldn’t issue an injunction that would have halted DACA immediately, because the eight states and two governors who have filed suit to end the program can’t demonstrate an immediate harm. He noted they had since 2012 to sue. Because the program was well underway, it would put many people at risk without serving the “best interests of the country,” Hanen said.
If DACA were halted, it wouldn’t immediately lead to deportation, but it would remove protections in place by the program—which also includes the right to work—over two years. About 1.8 million people are estimated to meet the criteria to qualify for DACA.
Three other federal judges have issued orders requiring DACA to remain in place, with various interpretations. In January 2018, a California judge required the program stay in place for renewals, and in February, a New York judge found similarly. Meanwhile a Washington, D.C., jurist said in April that the program must also accept new applicants.
The Supreme Court declined an extraordinary request to rule on the matter in February, following the first two judges’ injunctions. Following litigation, the Supreme Court may opt to hear an appeal consolidating all four cases, regardless of outcomes in each.
Barack Obama used executive action to put DACA into effect after several efforts between 2001 and 2011—some of them bipartisan—failed to pass legislation sometimes known as the DREAM Act, which would provide a path to permanent residency for more people than are covered by DACA’s provisions.
DACA is available to people who entered the country without authorization when they were under 16 years old, who were younger than 31 as of June 15, 2012, and who have remained in the U.S. since 2007. Those who apply for deferred action must also have never committed misdemeanors or felonies.
If accepted, the deferral lasts two years and may be renewed. The application and each renewal has a $495 fee.
The DREAM Act and similar bills would have extended coverage to another 1.8 million people who entered the U.S. at age 16 or 17, or who were excluded by other current date criteria.