DACA, back where it started: the work-permit question before Judge Hanen

The Deferred Action for Childhood Arrivals program is, again, before US District Judge Andrew Hanen of the Southern District of Texas — the same judge who declared it unlawful in 2021. What he is being asked to decide now is narrower than the question that has hung over the program for thirteen years, but for the people who hold DACA, it is the part that matters most: whether the work permit can survive.

What DACA is, legally

DACA, created by the Obama administration in 2012 and re-issued as a formal regulation in 2022, does two distinct things. It defers removal — that is, it tells immigration enforcement not to deport a recipient for a renewable two-year period. And it makes recipients eligible for an employment authorization document, the work permit that lets them hold a job lawfully. The 2022 rule also confers “lawful presence,” a status that affects, among other things, the accrual of unlawful-presence time that can trigger future bars to re-entry.

That two-part structure is the hinge of the entire litigation. Deferred action is a long-recognized exercise of prosecutorial discretion: the executive branch deciding whom not to prioritize for removal. Employment authorization is a regulatory grant. Courts have treated the two very differently, and that distinction is now doing all the work.

How the case got here

Texas and a coalition of states sued in 2018, arguing DACA was created without the notice-and-comment rulemaking the Administrative Procedure Act requires and exceeded the executive branch’s statutory authority. Judge Hanen agreed in 2021 and again, after the 2022 rule, in 2023.

On January 17, 2025, the Fifth Circuit Court of Appeals largely affirmed him — but with an important split. The court held that DACA’s protection from removal is a lawful exercise of prosecutorial discretion. The portions of the rule that grant employment authorization and lawful presence, it held, are unlawful. And it confined the practical effect of that ruling to Texas, reasoning that Texas was the only plaintiff state to prove a concrete financial injury — the standing requirement that determines who is entitled to a remedy (Fifth Circuit opinion, No. 23-40653; MALDEF).

The Fifth Circuit’s mandate issued in March 2025. The next procedural step would ordinarily be a petition for Supreme Court review. None came. No party — not the United States, not the intervening DACA recipients represented by MALDEF, not the state of New Jersey defending the program — asked the Court to take the case before the extended deadline passed in May 2025 (National Immigration Forum). That non-decision is consequential. It means the Fifth Circuit’s holding stands as the governing law, and the case returns to Judge Hanen not to relitigate whether DACA is lawful but to decide how the appellate ruling gets implemented.

What Hanen is being asked to decide

In July 2025, Hanen ordered all parties to file supplemental briefing on a set of implementation questions. The briefs were filed in late September, and briefing closed in late November 2025 (American Immigration Council). As of this writing, he has not ruled.

The questions in front of him are technical, but each carries real weight:

• Severability. The Fifth Circuit said the work-permit and lawful-presence provisions are unlawful while deferred action is not. Hanen must decide whether the 2022 rule can actually be cut that way, or whether the unlawful pieces are so entangled with the rest that more of the rule falls.

• The geographic remedy. A “Texas-only” injunction is unusual, and implementing one is harder than describing it. The Department of Justice has proposed tying work authorization and lawful presence to the state of residence a recipient has on file with US Citizenship and Immigration Services — so that a recipient who lives in Texas could not hold a valid work permit, while the same recipient who moves out of state could. Under the proposal, moving into Texas could trigger loss of both the permit and lawful presence within roughly two weeks (American Immigration Council).

• The reach of Trump v. CASA. The Supreme Court’s 2025 decision limiting the availability of universal injunctions is itself a briefing question: whether and how it constrains the scope of any remedy Hanen can order.

• Reliance interests and timing. The intervenors have asked Hanen to account for the reliance interests of current Texas recipients — people who built careers, signed leases, and took on obligations on the strength of a work permit — by providing a wind-down period rather than an abrupt cutoff.

What a ruling against the work permit would mean

DACA’s national population has been declining as the program closes to new applicants; recent USCIS data put active recipients at roughly 506,000 in late 2025, down from about 525,000 in March 2025 (Migration Policy Institute). Of those, roughly 86,000 live in Texas (Texas Tribune).

For that Texas population, a ruling that ends the work-permit component would not, on the Fifth Circuit’s logic, mean deportation — removal protection was upheld. It would mean something narrower and still severe: a person could remain in the country lawfully shielded from removal but could not lawfully hold a job. In practice, that forces a choice between leaving the workforce and leaving the state. The Texas Tribune has reported that some recipients have already begun relocating in anticipation (Texas Tribune).

There is also a structural point worth being precise about. A Texas-only remedy creates two classes of DACA recipient defined by geography — a result the Fifth Circuit acknowledged and one of the questions Hanen himself flagged for briefing. Whether that survives contact with implementation, or whether the practical impossibility of a state-bounded federal benefit pushes toward a broader remedy, is genuinely unresolved.

The deeper point is the one the litigation keeps returning to. DACA has now survived more than a decade because no court has been willing to end deferred action itself, and no Congress has been willing to replace it with a statute. The program rests on executive discretion, which is durable against removal challenges and fragile against everything else. The work permit — the thing that makes DACA function as a path to ordinary adult life rather than a bare deferral of enforcement — is the fragile part. Hanen is being asked to decide how fragile.

What to watch

• Whether Hanen rules, and when. Briefing closed in late November 2025; the court has given no timetable. A ruling could issue at any point.
• The scope of the severability holding. A narrow ruling cuts only the work-permit and lawful-presence provisions; a broader one could reach more of the 2022 rule.
• Any wind-down period. Whether Hanen builds in transition time for current Texas recipients, as the intervenors requested, or orders a faster cutoff.
• The appellate path. Any Hanen ruling will almost certainly be appealed back to the Fifth Circuit, and the losing side there may finally seek Supreme Court review — the step every party declined in 2025.
• Congress. The Dream Act and the broader Dream and Promise Act have been reintroduced in the 119th Congress and have not advanced. A statute remains the only thing that would take DACA out of the courts entirely.