On September 13, 2023, Judge Andrew Hanen of the Federal District Court in Houston, Texas, ruled that the Deferred Action for Childhood Arrivals (DACA) Program is unconstitutional. Specifically, Judge Hanen concluded that President Obama exceeded his authority when he issued an Executive Order creating the DACA Program in 2012. However, Judge Hanen did not order the termination of the DACA Program. Therefore, existing DACA recipients will continue to be protected under the program and will retain the ability to renew their existing DACA immigration benefits.
 
To date, DACA has served to provide protection from deportation and the benefit of issuance of employment authorization for approximately 800,000 individuals brought to the United States as children who otherwise lacked legal immigration status in the country.
 
Successive attempts by Congress to pass immigration legislation benefiting DACA recipients have failed over concerns about illegal immigration and border security. Business and civic leaders, the academic community, religious organizations, and well-known individuals and politicians have all expressed opposition to the termination of the DACA Program.
 
Key Decision Highlights:

• The ruling does not allow new DACA applications. USCIS will accept (but will not process) DACA requests in compliance with the decision.
• Current DACA recipients’ Employment Authorization Document (EAD) cards remain valid until they expire (unless terminated by USCIS).
• Current DACA recipients will be able to keep their immigration benefits and will be able to continue to renew their employment authorization documents.
• U.S. employers may continue to employ DACA recipients with valid EADs.
• Employers may not terminate DACA employees on the basis that their EAD might be expiring at a future date.
• Current DACA recipients continue to be lawfully present in the U.S. for purposes of employment and social security benefits.
• Current DACA recipients do not need to submit new DACA and/or EAD applications before the appropriate time for their renewal.

Most legal observers believe that the Supreme Court will ultimately decide the fate of DACA on the merits. In the past, the Court had declined to decide the case on the merits and returned it to lower courts for decision and review.

Our Immigration Practice will continue to monitor and report on developments in this area; we are available to answer questions related to DACA and other immigration topics.