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Immigration 101: DACA and the Supreme Court

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Read the first half of this post (explaining DACA and Dreamers) here.


Since DACA was created through an executive order, presidents after Obama technically had the authority to rescind the program at any time.

On September 5, 2017, then-Attorney General Jeff Sessions and then-President Donald Trump did just that, announcing a phase-out of DACA that would have terminated the program completely by March 2020. The announcement led to chaos and processing errors as Dreamers rushed to fill out their renewal applications one last time.

Under the Trump Administration, even some Dreamers who had active DACA status ended up in detention. In November 2017, Border Patrol agents picked up Felipe, a 20-year-old Dreamer with active DACA status and no criminal history, simply because he was riding in a car with undocumented relatives. He was detained, his DACA status was revoked, and he briefly faced deportation proceedings before being allowed to go home. Another Dreamer, Osman, was temporarily detained after his DACA renewal application was delayed by postal service errors and rejected.


Trump’s recission of DACA kicked off a long and complicated litigative process involving multiple cases and multiple courts. The two main efforts against DACA have involved 1) the Supreme Court, and 2) the District Court for the Southern District of Texas.

DACA and the Supreme Court

Following Trump’s move against DACA, a number of DACA recipients filed lawsuits claiming their rights under the Administrative Procedure Act (APA) and the due process clause of the Fifth Amendment. Multiple lower courts ruled in their favor, requiring USCIS to continue accepting DACA renewal applications. (However, no new applications could be processed.) 

In 2020, the Supreme Court took on the consolidated cases and ruled against Trump, saying that the DACA rescission was “arbitrary and capricious.” In other words, the Administration had failed to provide a good reason for the move, and had not considered the hardships that DACA recipients would face or the enormous consequences of stripping work permits away from hundreds of thousands of students, workers, and entrepreneurs.

As a result, DACA was very briefly returned to its full status. In December 2020, a federal district court judge reopened DACA to new applicants for the first time since 2017. DACA’s restoration, however, was short-lived.

DACA in the District Court for the Southern District of Texas

In May 2018 — after the Trump Administration’s DACA rescission but before the related legal battles had played out — seven states led by Texas filed their own lawsuit against DACA in the District Court for the Southern District of Texas.

It’s important to note that the district courts in Texas — and their appeals court, the Court of Appeals for the Fifth Circuit — are filled with Trump appointees, making them some of the most conservative courts in the country. In Texas, some federal district courts divisions are so small that when a plaintiff files suit there, they can effectively choose their own judge. When it comes to immigration, Republican extremists have turned again and again to Judge Andrew Hanen, a George W. Bush appointee in the Southern District of Texas whose rulings have been described as bizarre and unreasonably harmful to immigrants.

In November 2019, Hanen agreed to stay the Texas lawsuit while the Supreme Court case was pending. After the Supreme Court case was resolved, however, Hanen returned to the suit, hearing oral arguments in December 2020.

After Joe Biden was sworn in as president in January 2021, he signed his own executive order “preserving and fortifying” DACA.

However, in July 2021, Judge Hanen ignored the memo and ruled that DACA was unlawful. His decision once again constrained DACA to renewals but not new applications.

DACA recipients and advocates appealed the decision, but in October 2022, the Fifth Circuit remanded the suit back to Hanen while upholding his ruling against DACA. In September 2023, Hanen heard the remanded case and again held that DACA is unlawful.


As of this writing, the DACA remains in a state of half-implementation. Dreamers who already have DACA can continue to apply for renewals, while no new applicants can be processed. DACA is still pending in the Fifth Circuit Court of Appeals and the Supreme Court may take up the issue again in the future.

At its high water mark, DACA granted a form of legal status to more than 700,000 Dreamers. In March 2023, the program only counted 578,680 recipients, as some recipients have been able to legalize their status and leave the program, while only some new applicants have been taken in.

Source: Migration Policy Institute

Today, there are 400,000 immigrant youth who qualify for DACA but are unable to access the program because they are not allowed to apply. Another 600,000 Dreamers came to the US after Obama’s DACA announcement and are thus ineligible.

If Donald Trump were to win a second term, DACA would face a renewed threat. Trump’s Project 2025 – the immigration agenda he has said he would implement on Day One – includes a plan to eliminate federal staff time for processing renewal applications, which may eliminate DACA once and for all.

Ultimately, only Congress can pass permanent protections for Dreamers and DACA recipients. Over the years, Dreamers, immigrant youth, advocates, and allies have organized countless demonstrations calling for permanent status for themselves and their families. They have conducted acts of civil disobedience, been arrested, marched 1,500 miles from Miami to Washington D.C., stormed Congressional offices, picketed ICE offices, conducted hunger strikes, and much more.

Congress has proved unwilling or unable to pass protections such as the Dream Act. While permanent protections passed the House in the form of the Dream and Promise Act in 2019, and again in 2021, the Senate did not take up the legislation. But as we grow closer to the 25th anniversary of the first Dream Act – and as the original Dreamers now move into middle age – it’s past time that Dreamers, DACA recipients, and immigrant youth finally be given permanent protections in the country they call home.



Originally published November 8, 2019; last updated March 14, 2024