Federal Judge Blocks New DACA Regulations

With the Deferred Action for Childhood Arrivals (DACA) program having spent years in legal limbo, the Department of Homeland Security on September 28, 2021 published a notice of proposed rulemaking.  After review public comments, a final rule was published on August 24, 2022, with an effective date of October 31, 2022. The new regulations kept the original eligibility requirements for DACA but codified it with the idea that a program based on regulations following notice and comment would be better positioned to withstand litigation than the current version based on a memo from the Secretary of the Department of Homeland Security.

On October 14, 2022, Judge Hanen, a federal judge in the Southern District of Texas, issued an order blocking the new DACA regulations while he considers the already-pending challenge to DACA which had been remanded to him from the Fifth Circuit Court of Appeals. Under Judge Hanen’s current order, DHS can continue to grant DACA renewals but cannot grant DACA to any new applicants.

A final decision on the legality of the DACA program still hangs in the balance. But given Judge Hanen’s past decisions and given the makeup of the Fifth Circuit Court of Appeals and the Supreme Court, it seems likely that DACA’s days are numbered.  The ultimate fix, as we have long known, is that Congress must pass a DREAM act to give DACA grantees and all DREAMers permanent status in this country.

If you have any questions about the DACA program, including your eligibility to renew DACA, contact our office to speak with one of our attorneys.