How Is Biden Handling DACA?

In July 2021, a federal judge in Texas ruled that President Barack Obama’s signature immigration policy is unlawful, threatening a program that has protected more than eight hundred thousand young undocumented immigrants from deportation. The Joe Biden administration has since appealed the decision, and the case over DACA, or Deferred Action for Childhood Arrivals, could ultimately go to the Supreme Court.

What happened in the federal ruling?

Responding to a suit by Texas and eight other states, U.S. District Court Judge Andrew Hanen directed the Biden administration to stop granting new requests made under the DACA program, which provides protection from deportation and work permits to undocumented immigrants who arrived in the United States as children. Hanen called the program illegal, saying that Obama exceeded his authority when he created it through an executive order in 2012. 

Current recipients, often referred to as Dreamers, remain in the program. The 611,470 immigrants [PDF] who were already enrolled in DACA are still eligible to renew their work permits.

What is DACA’s legal history?

Prior to DACA’s inception in 2012, Democratic lawmakers pressed unsuccessfully for more than a decade to pass the DREAM Act, a bill with similar effects. 

Establishing DACA through executive order meant that the measure was vulnerable to reversal, which President Donald Trump did when he suspended it in September 2017, calling it unconstitutional. This set off a flurry of court battles, culminating in a Supreme Court ruling in June 2020 that the Trump administration had not given adequate justification for ending the program. Though the decision allowed DACA to remain in place, the Supreme Court did not rule on the fundamental question of its constitutionality.

The Trump administration resumed processing renewals but not new applications. Then, in December 2020, a federal court ordered the administration to reopen DACA to new applicants.

The Texas court’s July ruling came as the Biden administration was beginning to review the backlog of applications. In the first five months of 2021, about 1,900 immigrants, making up just 3 percent of first-time applicants over that period, were approved for DACA.

What’s at stake?

Since its creation, DACA has benefited more than eight hundred thousand immigrants. Without it, the more than six hundred thousand current recipients would be at risk of deportation. These recipients are primarily from Mexico, and 2021 data reveals that more than one-third of them arrived in the United States before the age of five.

Ending DACA would shut out an even larger number of prospective applicants. According to the Migration Policy Institute, the estimated DACA-eligible population stood at more than 1.1 million at the end of 2021.

Some economists say that terminating the program would have broader repercussions. The Center for American Progress (CAP), a Washington-based think tank, found that Dreamers collectively pay as much as $9.4 billion in taxes each year. CAP also notes that more than 340,000 of them work in jobs that the government deems “essential,” including in agriculture, education, and health care. Other research estimates that deporting all DACA recipients would cost U.S. Immigration and Customs Enforcement (ICE) up to $21 billion.

Some Republican lawmakers, meanwhile, say the program encourages undocumented immigration, and they contend that only Congress has the constitutional authority to change immigration law.

What’s next for the Biden administration?

In September 2021, the administration appealed Judge Hanen’s ruling, and the case remains under review by the Fifth Circuit Court of Appeals, considered the most conservative appeals court in the country. Regardless of how the court rules, experts say DACA is likely to head back to the Supreme Court. 

Meanwhile, a historic influx of migrants at the southern border is challenging Biden’s efforts to reverse Trump-era restrictions. The U.S. Border Patrol reported 210,000 apprehensions in March 2022, its highest monthly total in over twenty years. The surge comes as the White House seeks to bolster asylum protections, including by ending the use of Title 42, a controversial public health order that allows authorities to turn away asylum seekers at the U.S.-Mexico border.

The DACA debate is a further complication for Biden, who promised on the campaign trail to grant Dreamers a path to citizenship. Upon taking office, he sent a comprehensive immigration reform bill to Congress, which would increase caps on legal immigration and give nearly eleven million unauthorized immigrants already in the country a pathway to legal status, including Dreamers.

The bill is still under deliberation in Congress, where it will be nearly impossible for it to win enough Republican support to pass despite mounting bipartisan pressure, analysts say. Although some Democratic lawmakers sought to incorporate a narrower set of immigration reforms, including for Dreamers, in their 2022 budget package, divisions within the party over how to address the border crisis hampered that effort.