For more than a decade, the Deferred Action for Childhood Arrivals policy has allowed more than 580,000 undocumented immigrants who arrived in the U.S. as children to receive work permits and deportation relief. Hanen’s latest decision pushes the program one step closer to the Supreme Court, where advocates and legal experts warn that the conservative bench seems likely to rule the program illegal.

The judge, who has ruled repeatedly against earlier versions of DACA, was blunt in his conclusion that the Department of Homeland Security hadn’t really tweaked the program at all despite the extensive notice-and-comment process the government carried out.

“DHS did nothing to change or resolve the substantive problems found by this Court or the Fifth Circuit,” Hanen wrote in a 40-page opinion.

Hanen, an appointee of President George W. Bush, said bluntly that the Biden administration’s DACA rule illegally usurps Congress’ power just as the initial plan put forward in 2012 by President Barack Obama did.

“DHS views the immigration system instituted by Congress as faulty, so it is instituting its own solution, regardless of the dictates of Congress,” the judge wrote.

The Biden administration suggested that if Hanen was concerned about the work permits issued to most DACA recipients, he could simply nix that part of the program, but he turned down that proposal.

However, the judge seemed concerned about perceptions that his ruling could trigger deportations of DACA recipients. He stressed in his new opinion and a related order that he is not ordering the detention or removal of anyone and that those decisions remain in the hands of DHS officials.

The initial DACA program established by Obama in 2012 faced no serious legal challenge at that time, but Hanen blocked an expansion of the program in 2015, acting on a challenge from Republican-led states. The Supreme Court deadlocked on the issue in 2016, effectively blocking the expansion but leaving the initial program intact.

President Donald Trump sought to revoke the DACA program, but it remained in place during legal challenges. In 2020, the Supreme Court issued a surprise, 5-4 ruling declaring that the effort by Trump officials to dismantle the program was legally flawed.

Following that decision, red states targeted the initial DACA program, prompting Hanen to rule that scheme illegal. Throughout, the judge allowed existing DACA recipients to renew two-year work permits and deportation protections. However, since 2021, the program has been closed to new applicants.

The series of legal defeats led the Biden administration to seek to put the program on firmer ground by proposing formal regulations to govern the program in 2021 and by taking public comment on the rules — addressing a complaint from some critics that the earlier variations dodged standard federal-government policymaking processes.

Only Congress can grant DACA recipients permanent residency, and for years, immigration advocates have called on lawmakers to take action. The advocacy group on Wednesday blasted Hanen’s decision as a “predictable” but “devastating blow.”

“We will continue to fight for the president to provide additional protections and for Congress to enact the legislative solution that all Dreamers deserve,” the group said, referring to young people who were brought into the U.S. and have remained without legal status. “In the meantime, it’s important current DACA recipients know that DACA renewals and programs like Advance Parole remain in place and we strongly encourage everyone who is eligible to utilize these resources.”

The Biden administration is expected to appeal Wednesday’s decision, though the review of Hanen’s ruling will go to the 5th U.S. Circuit Court of Appeals, which already declared the initial DACA program unlawful last year.

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