When the U.S. Supreme Court ruled in June that the popular Obama-era Deferred Action for Childhood Arrivals could continue, recipients of the program were cautiously optimistic about its future.
That caution was justified: Another effort to undo the program, this time led by the state of Texas, will go before a federal judge Tuesday in Houston.
As of June, there were about 645,000 beneficiaries of the DACA program in the country, including about 106,400 in Texas, according to federal government statistics. The program, which grants recipients a renewable, two-year work permit and a reprieve from deportation proceedings, is open to undocumented immigrants who came to the country before they turned 16 and who were 30 or younger as of June 2012. To qualify, applicants must pass a background check and be enrolled in school, have graduated or have earned a GED.
The state’s total is the second-highest behind California. About 34,800 recipients live in the Dallas area, and another 32,500 live in the Houston area.
The hearing Tuesday is a continuation of a 2018 lawsuit brought against the federal government by Texas Attorney General Ken Paxton and eight other states that have argued that they will face irreparable harm if the program is allowed to continue. The states have argued that they bear extra costs from providing health care, education and law enforcement protection to DACA recipients, according to the original complaint.
Both sides are asking U.S. District Judge Andrew Hanen to issue a summary judgement in their favor instead of ordering a full hearing on the case.
In 2015, Hanen halted the Deferred Action for Parents of Americans and Lawful Permanent Residents program — which gave similar protections to a larger group of people. But he shot down a request in 2018 to halt DACA that was part of the Texas lawsuit. At the time, Hanen said the states had waited for years after the program began before seeking relief and that there was ample evidence to show that ending DACA “was in contrary to the best interests of the public.”
President Donald Trump also tried to end DACA, in 2017, but the Supreme Court’s ruling in June this year said that the administration didn’t follow proper federal procedure. The high court told the administration it could try again, but a subsequent lower-court decision out of New York last month required the Trump administration to also begin accepting new applications for the program.
Texas’ effort is a separate issue, said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, which represents 22 DACA recipients in their efforts against Texas and the other states.
“This case does not take up the question of whether Trump had the authority to rescind DACA,” she told reporters earlier this week. “This case is an attack on the underlying legality of DACA itself.”
Perales said Hanen isn’t expected to issue a ruling Tuesday, but when he does, there are multiple possible outcomes. The judge could order a full hearing on the case, he could issue a ruling that DACA is either lawful or unlawful, or he could decide that Texas and the other states haven’t proven harm and dismiss the case, she said.
Jacqueline Watson, an Austin-based immigration attorney who was one of the first in Texas to represent DACA applicants, said she was hopeful Hanen would revert back to his previous argument that the states waited too long to challenge the program. She said that although the U.S. Supreme Court ruled on a separate case, its decision could also nudge Hanen to rule in DACA recipients’ favor.
“More people have since received the benefit, and the [Supreme Court] said … you can’t arbitrarily take this away,” she said. "Now you have an obligation, you can’t just keep changing your mind from one day to the next. That’s not a way to run a bureaucracy.”
The hearing comes less than a month before President-elect Joe Biden takes office. Biden promised during his campaign to make a push for comprehensive immigration reform.
It’s unclear whether a final resolution to the case will come before Inauguration Day on Jan. 20. But a ruling in the states’ favor could dictate how Biden crafts his own immigration policies, said MALDEF President Thomas Saenz.