In the latest decision in the Deferred Actions for Childhood Arrivals (DACA) saga, Judge Andrew Hanen in the Southern District of Texas has found that the new DACA Final Rule issued by the Biden Administration was unlawful. In addition, he expanded the original July 16, 2021, injunction and order of vacatur to cover the Biden Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.”

The decision means that:

• USCIS will continue to accept DACA applications, but it will not process any initial DACA requests.

• Employment Authorization Documents (EADs) for current DACA recipients will remain valid until they expire.

• USCIS has confirmed that the agency will continue to accept and process DACA renewal requests and EAD applications in connection to active DACA grants.

Judge Hanen previously found that the Obama program was unlawful, a ruling affirmed by the U.S. Court of Appeals for the Fifth Circuit in 2022. The appellate court found the program violated the Administrative Procedure Act and was contrary to federal immigration law. It added that the program also was not a valid use of prosecutorial discretion by DHS. In his new ruling, Judge Hanen found the same applied to the new Biden Administration Final Rule.

The history of DACA has been controversial since its inception. Although the new decision is not surprising based on Judge Hanen’s prior opinions on the legality of DACA, it highlights a major flaw in the immigration system: a lack of permanent protections for DACA recipients. As this decision will likely be appealed to the Fifth Circuit, the debate over the benefits of the DACA program will continue until there is a permanent solution enacted by Congress for undocumented immigrants who came to the United States under the age of 16.