By Licelle Cobrador, Esq.
New York – Texas has been in the spotlight lately. Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas held that Deferred Action for Childhood Arrivals/DACA violates the substantive provisions of the Administrative Procedure Act/APA on July 16, 2021. The APA directs that federal agencies follow certain processes in implementing new regulatory policies. The court vacated the June 15, 2012 memorandum that created DACA.
In Judge Hanen’s 77-page decision, he called DACA an “illegally implemented program.” This was in response to a Texas-led, multi-state challenge to the legality of DACA in the case known as Texas v. United States. Texas Attorney General Ken Paxton, who brought the lawsuit versus the Biden Administration argued, “DACA amounts to a constitutional violation because the Executive cannot exercise such legislative powers—it cannot dispense with statutes addressing unlawful presence by declaring a class of aliens to henceforth be present lawfully.” However, in response, the court declared, “To resolve the issues concerning the legality of DACA, the court need not address whether the Executive Branch has violated its duties under the Constitution.” Further, it took no position on how DHS (or Congress) should settle any of the considerations put forth.
The lingering question in people’s minds: What about the U.S. Supreme Court’s 2020 decision in Department of Homeland Security v. Regents of the University of California?
In that case, the U.S. Supreme Court held that the Trump administration’s move to terminate DACA was unlawful. Although it allowed DACA to endure, it did not directly address the specific issue the Texas district court tackled: Was the DACA program issued properly in its inception? Here, the Texas district court ruled in the negative. In short, the Supreme Court did not go into the merits of DACA in that case.
What are the implications of the Texas federal court’s decision?
Acknowledging the harmful impact of a permanent injunction if such was to go fully into effect straightaway, the court stayed its injunction with respect to those with DACA status on July 16, 2021, and for individuals filing renewal applications, which include requests from current DACA holders and requests from individuals whose DACA grant expired less than a year earlier. Therefore, the USCIS may continue processing renewal applications, including applications to renew DACA work permits. However, the USCIS cannot process initial DACA applications and those previously granted DACA, but failed to request renewal within one year of expiration. The Service also stated that employers should not use the recent court decision to make any employee show more or different documentation to verify their employment authorization. Employers should continue to recognize that DACA work permits are satisfactory to establish work authorization. Furthermore, neither this order nor the accompanying injunction mandates DHS or the Department of Justice to take any immigration, deportation or criminal action against any DACA grantee, applicant or any other individual that it would not otherwise take.
The Texas federal court’s ruling illuminates the stark reality that the U.S. needs comprehensive immigration reform. President Joseph Biden proclaimed, “the federal court ruling is deeply disappointing.” Senate Majority Leader Charles Schumer (D-NY) and House Speaker Nancy Pelosi (D-CA) vowed to press forward on legislation that would ensure the dreamers have a pathway to citizenship. Congress can ensure a permanent solution for the DACA population who are generally well-educated and positive contributors to the betterment of this country. #
This column serves primarily as a guide. It aims to provide general information on immigration law. The information provided is for general guidance and reference purposes only and it is not intended to serve as, nor can it be relied upon, as legal advice to address any specific situation. Those with specific questions are strongly encouraged to contact an immigration attorney.
*About the author
Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.
Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York.
Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.
Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law.