Federal Judge Andrew S. Hanen ruled Wednesday that the Biden administration’s regulation protecting Deferred Action for Childhood Arrivals (DACA) is illegal.

Key Points:

  • Judge Hanen ruled that DACA was illegal in 2021, saying the Obama administration did not follow proper steps when it created the program in 2012.
  • The Fifth Circuit Court of Appeals upheld this ruling, but also asked Hanen to review the legality of a Biden administration final rule published in August 2022 to “preserve and fortify” DACA.
  • On Wednesday, Hanen ruled that this regulation was also unlawful, saying there is no material difference between the 2012 memorandum and the 2022 rule.
  • Under the ruling, the Department of Homeland Security will continue to be enjoined from approving first-time DACA requests. The agency will continue to be permitted to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients.

‌BAL Analysis: Judge Hanen’s ruling was unwelcome news for the immigration advocacy community, though not a surprise following his earlier ruling against DACA. The Biden administration is expected to appeal the ruling, and most observers believe the case will eventually land before the U.S. Supreme Court. Current DACA beneficiaries can continue to renew their DACA and DACA-related Employment Authorization Documents, though first-time requests cannot be approved. BAL will continue to follow DACA litigation and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group.

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