As We Await Judge Hanen Decision on DACA, Foreign Policy Case for DED Strengthens

With Judge Hanen having heard arguments and promising to issue a decision in Texas v. Biden soon, the White House must begin earnestly exploring alternatives to DACA protections, of which Deferred Enforced Departure is one. Regardless of the outcome, Judge Hanen’s ruling will likely trigger a process of appeals that, at the earliest, could result in a final decision by the Supreme Court in June 2024.

With an adverse decision widely expected, much of the dispute has centered on the remedy Judge Hanen will fashion. Specifically, would Judge Hanen allow current DACA recipients to continue renewing their protections indefinitely, forebear terminating current DACA recipients protections and allow them to expire at the end of their grant, or immediately terminate all DACA protections? No matter how Judge Hanen chooses to proceed, a stay by the Fifth Circuit Court of Appeals maintains the status quo until it can consider the appeal of Judge Hanen’s decision.

Since the publication of the #DED4DACA Campaign’s report Protecting U.S. Foreign Policy Interests Through Deferred Enforced Departure for DACA Eligible Individuals, developments have further strengthened the case for President Biden directing DED for DACA recipients, those with pending applications, and those who would otherwise be eligible.

With the lifting of the Title 42 public-health order that allowed summary expulsions of migrants at the border, the Biden-Harris Administration announced “sweeping measures,” the success of which will require high-level cooperation from governments in the region. The announcement included the establishment of over 100 Regional Processing Centers in the Western Hemisphere, including  in Guatemala and Colombia, and Mexico accepting non-Mexican nationals removed from the United States. In exchange, the United States has committed to doubling the number of refugees it accepts from the Western Hemisphere, expanding family reunification parole processes, and parole processes for Cuban, Haitian, Nicaraguan, and Venezuelan nationals. These measures embody the responsibility sharing principles regional governments, including the United States, affirmed as part of the Los Angeles Declaration.

The threat of removal of hundreds of thousands of individuals to Central and South American countries that withdrawing DACA protection represents strikes at the heart of the United States’ credibility in securing regional migration cooperation. A recent consequence of the United States’ failure in this regard was the Government of Colombia’s suspension of removal flights. While the Colombian government cited detention conditions of Colombian nationals in its decision, it should not escape attention that the Ambassador of Colombia to the United States requested Deferred Enforced Departure for its foreign nationals in November of last year.

DED is particularly well suited to ameliorate adverse foreign policy consequences that would result from the removal of foreign nationals, as an authority grounded in the President’s conduct of foreign affairs. Unlike other forms of relief, like Temporary Protected Status, with eligibility set by statute, every President since George H.W. Bush has used tailored grants of DED to avoid damaging United States foreign policy interests. Withdrawing protections from DACA recipients and foreclosing the possibility of new DACA registrants would undoubtedly harm the United States’ interests in advancing regional migration cooperation.