Judge Hanen’s DACA Ruling: Fifth Circuit, Renewals, Applicants

Judge Andrew Hanen’s DACA ruling did two things that still shape the program today: it declared the Deferred Action for Childhood Arrivals policy unlawful, and it blocked U.S. Citizenship and Immigration Services from approving any new initial applications. Renewals were left alone. That compromise, first issued on July 16, 2021, and extended in September 2023 to cover the Biden administration’s formal DACA regulation, is the reason roughly 525,000 current recipients can still renew while no one new has been approved since July 2021.¹

What Hanen Actually Ruled

The case is State of Texas v. United States, filed in May 2018 by Texas along with Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia. It was assigned to Judge Hanen in the U.S. District Court for the Southern District of Texas.²

On July 16, 2021, Hanen declared the original 2012 DACA memorandum unlawful on two grounds. The first was procedural: the Department of Homeland Security never ran the policy through the notice-and-comment rulemaking that the Administrative Procedure Act requires.³ The second was substantive: the court found that DACA went beyond the executive branch’s authority under the Immigration and Nationality Act, creating a class-based system of benefits that belongs to Congress rather than to individual prosecutorial discretion.⁴

Hanen enjoined USCIS from approving new initial DACA applications nationwide, but he allowed the agency to keep processing renewals for people already in the program. That split remedy is what has kept DACA functioning, in a limited way, ever since.

DHS tried to fix the procedural problem by publishing a formal DACA regulation on August 30, 2022, codified at 8 CFR 236.21–236.25.⁵ On September 13, 2023, Hanen ruled that the new regulation still had the same substantive defect: even with proper rulemaking, the executive branch cannot grant class-wide immigration benefits without authorization from Congress. He extended the injunction to cover the 2022 Final Rule.³ For recipients, nothing changed day to day. Initial applications remained blocked; renewals continued.

How the Fifth Circuit Narrowed the Remedy

The Fifth Circuit Court of Appeals ruled on January 17, 2025. It agreed with Hanen that DACA’s work authorization provisions are unlawful, but it reshaped his order in two important ways.⁶

The court limited the injunction to Texas. Only Texas had shown a concrete financial injury sufficient to sustain the case, so the remedy could not reach beyond that state.⁷ The court also applied the severability clause built into the 2022 Final Rule, which said DHS intended the deportation forbearance to work independently from the work permit. That meant only the work authorization piece should fall; the protection from deportation stays in place.⁶

The Fifth Circuit sent the case back to Hanen to work out how to implement that narrower remedy. Both sides submitted briefs in November 2025. The core unanswered question is what happens to existing DACA work permits held by people in Texas: whether they get terminated, allowed to run out at their current expiration dates, or simply not renewed. As of mid-2026, Hanen had not yet issued implementation directions.

What This Means for Renewals Right Now

If you already have DACA, you can still renew. Both Hanen’s order and the Fifth Circuit ruling preserved USCIS’s authority to process renewal applications and issue updated Employment Authorization Documents.³

The renewal process, though, has gotten harder in practical terms. Processing times have grown. Between October 2025 and February 2026, the median wait for a renewal decision was about 70 days, up from roughly 15 days earlier in fiscal year 2025. By late April 2026, USCIS reported most renewals were taking about 122 days. USCIS recommends filing 120 to 150 days before your current status expires.⁸

On December 4, 2025, USCIS also cut the maximum validity period for newly issued Employment Authorization Documents from five years to 18 months.⁹ Recipients will need to renew more often, which means more filing fees and more exposure to processing delays.

One boundary worth being clear about: the Fifth Circuit’s ruling that work authorization is unlawful has not yet taken effect. Renewals are still being issued nationwide, including in Texas, while the district court works out implementation. That could change once Hanen rules.

What This Means for New Applicants

If you have never held DACA, you cannot get it right now, regardless of which state you live in. USCIS will accept and hold a Form I-821D initial application, but the agency is legally barred from approving it while the injunction stands.¹⁰ This block has been in place since July 2021. Filing an initial application now means paying the fee and joining a queue with no timeline and no guarantee of a decision.

The May 2026 USCIS Policy Guidance

Separate from the court case, USCIS issued policy guidance on May 8, 2026, titled “Deferred Action as an Extraordinary Use of Prosecutorial Discretion.” The agency said deferred action should be reserved for compelling individual cases rather than granted broadly. The guidance does not formally rescind DACA or rewrite the eligibility criteria, but it introduces a stricter discretionary framework for how USCIS reviews applications.

Two features stand out. The guidance took effect the day it was issued, and it applies to any renewal that was pending on May 8, 2026, or filed after. USCIS also stated that a recipient’s reliance on continued deferred action does not outweigh the government’s interest in “ensuring the integrity of the legal immigration system, national security, and public safety.”

USCIS has not yet issued a wave of denials under this guidance, but the shift in language is one that attorneys and recipients are watching. It sits on top of the litigation risk rather than replacing it.

Where the Case Goes Next

Hanen’s court is now the venue to watch. When he issues implementation directions, they will determine whether DACA work permits in Texas get pulled immediately, allowed to expire, or simply not renewed. Other states could try to use the Fifth Circuit’s reasoning to bring their own challenges, which would expand the geographic footprint of any Texas-only remedy.

No party has yet petitioned the Supreme Court for review, though the window remains open. If the Court took the case, a decision would likely be at least a year away. In the meantime, the safest posture for a current recipient is to file renewals early within the 120-to-150-day window, plan for more frequent renewals under the shorter EAD validity, and keep an immigration attorney in the loop as Hanen’s implementation ruling and the May 2026 policy guidance play out.⁸

1
U.S. Citizenship and Immigration Services. Active DACA Recipients – Fiscal Year 2025, Quarter 2
2
CourtListener. State of Texas v. United States of America
3
U.S. Citizenship and Immigration Services. Consideration of Deferred Action for Childhood Arrivals
4
Congressional Research Service. The Legality of DACA – Recent Litigation Developments
5
U.S. Citizenship and Immigration Services. DHS Begins Limited Implementation of DACA under Final Rule
6
Justia Law. Texas v. United States, No. 23-40653 (5th Cir. 2025)
7
United States Court of Appeals for the Fifth Circuit. State of Texas v. United States
8
U.S. Citizenship and Immigration Services. I-821D, Consideration of Deferred Action for Childhood Arrivals
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U.S. Citizenship and Immigration Services. Reduced Validity Periods for Newly Issued Employment Authorization Documents
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U.S. Citizenship and Immigration Services. Frequently Asked Questions