The Joe Biden administration, civil rights organizations advocating for DACA (Deferred Action for Childhood Arrivals), and immigration attorneys believe the only solution to the DACA program being declared illegal by Texas judge Andrew Hanen, is not just to appeal to higher courts but get Congress to act swiftly and enact legislation offering permanent residency to 11.2 million undocumented people.
The DACA program provides a measure of security to more than 800,000 recipients, including 16,000 Asian Americans.
On June 15, 2012, then DHS Secretary Janet Napolitano announced that people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Also, anyone requesting DACA had to be under the age of 31 as of June 15, 2012. They also needed to be at least 15 years or older to request DACA, and have never been in removal proceedings.
In July 16, in the US District Court for the Southern District of Texas, Judge Hanen, in Texas v. United States, held that the DACA policy “is illegal.”
The court granted summary judgment on plaintiffs’ Administrative Procedure Act (APA) claims; vacated the June 15, 2012 DACA memorandum issued by former secretary of homeland security Napolitano; remanded the memorandum to DHS for further consideration; and issued a permanent injunction prohibiting the government’s continued administration of DACA and the reimplementation of DACA without compliance with the APA.
The court temporarily stayed its order vacating the DACA memorandum and its injunction with regard to individuals who obtained DACA on or before July 16, 2021, including those with renewal requests.
Vice President Kamala Harris, talking to DACA recipients in her office on Thursday, July 22, assured them that they are ‘American’ and that the administration would fight for their pathway to citizenship. “The president and I, needless to say, are unequivocal that we recognize you for the Americans that you are, and that we recognize that you deserve all the rights that come with American citizenship,” Harris said.
Sharon Romney, spokesperson for the US Citizenship and Immigration Services (USCIS) confirmed to indica News that the service is not accepting new DACA applications and is abiding with the judge’s ruling, though the one received on and before July 16 would be processed. Answering a question about USCIS Acting Director Tracy renewals of applications, she forwarded a press statement by Secretary of Homeland Security Alejandro N. Mayorkas, stating, “We will continue processing DACA renewal requests, consistent with the ruling.”
USCIS Acting Director Tracy Renaud confirmed that “all individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole, consistent with the court’s order. The US Citizenship and Immigration Services will provide additional specific operational guidance in the coming days.”
Sharing her concern about the ruling, Lakshmi Sridaran, executive director, South Asian Americans Leading Together (SAALT), told indica News, “This was yet another unnecessarily disruptive decision by Judge Hanen to relegate DACA recipients and their families as well as potential DACA recipients to uncertainty around their status.”
“While it is a good sign the administration plans to act through rulemaking at DHS, a legislative solution is the only real and permanent path forward to end the back and forth in courts,” Sridaran said. “Congress must act now to protect DREAMers and the over 12 million undocumented individuals in our country, including many South Asians.”
According to SAALT, there are over 5,000 South Asian DACA recipients and the over 20,000 Indians alone who remain eligible for DACA.
Shiu-Ming Cheer, deputy director of programs at the California Immigrant Policy Center (CIPC) a constituent-based statewide immigrant rights organization with offices in Los Angeles, Sacramento, San Diego and Oakland told indica News, “For far too long Congress has delayed providing citizenship for immigrant youth and all immigrants who call the US home. The time to act is now.”
Jay Terkiana, an immigration attorney in the San Francisco Bay Area who works with DACA clients, told indica News, “It seems that we are back to the same spot where new DACA applications will not be entertained, but the extensions will be. The fate of new DREAMers rests in the hands of the Biden Administration, Congress, or the Supreme Court, which, by the way, is a conservative Supreme Court (6-3). Let’s see if Biden Administration can keep with its promise to protect DREAMers.”
Tejas Shah, a Chicago based immigration attorney, echoed that concern, telling indica News, “The district court’s decision invalidating the DACA program introduces fresh uncertainty into a program that has been a lifeline for hundreds of thousands of young people in the United States, and tens of thousands of Indian, Pakistani, and Bangladeshi youth, among others.
He said that in the face of conservative efforts to eliminate the program Congress must act in whatever possible – through the Dream and Promise Act, the U.S. Citizenship Act, or a reconciliation bill.
“I would encourage DACA recipients not to lose hope and to continue fighting for a permanent solution,” Shah said.
Asian Americans Advancing Justice issued the following statement in response to this ruling:
“We are disappointed by the decision from Judge Hanen, who has a history of anti-immigrant rulings and is playing politics with people’s lives by attacking this program that is widely supported by Americans. We remain confident that the DACA program is on firm legal ground, having been upheld by numerous courts, including the US Supreme Court. We urge the federal government to swiftly appeal this case.