Nearly a year after the Trump administration tried to kill an Obama-era program shielding young undocumented immigrants from deportation, dueling lawsuits will probably determine the fate of hundreds of thousands of people who were brought to the country as children.
On Friday, U.S. District Judge John D. Bates ruled that the Trump administration does not have to accept new applications for the Deferred Action for Childhood Arrivals program but must continue processing renewals while the future of the program is under appeal.
Bates is one of the federal judges presiding over four lawsuits aimed at maintaining or eliminating DACA, which was created by executive order by President Barack Obama and then ended by President Trump.
Judges in the District, California and New York have kept DACA alive for months, issuing injunctions and ordering the government to keep processing renewal applications.
But a competing lawsuit in Texas that questions DACA’s constitutionality now sits before U.S. District Judge Andrew S. Hanen. He blocked a similar executive action by Obama that would have shielded the undocumented parents of U.S.-born children.
If Hanen rules that DACA is unconstitutional in the next few weeks, the decision will probably fast-track the issue to the Supreme Court.
“The fate of DACA is going to have enormous repercussions on our country, our economy and most importantly, these human beings who have benefited from its protections,” said Justin Cox, a staff attorney with the National Immigration Law Center. “It will say a lot about who we are as a country and what the rule of law means.”
Several states, led by Texas Attorney General Ken Paxton, threatened legal action against the White House if it didn’t end DACA. On Sept. 5, U.S. Attorney General Jeff Sessions announced DACA would be rescinded. A subsequent Department of Homeland Security memo attempted to explain the administration’s reasoning and outline plans for phasing out the program by March.
Stopping DACA triggered legal challenges from civil rights organizations such as the NAACP and other groups fighting to preserve the program for the more than 700,000 recipients.
The protections have allowed recipients to obtain higher-paying jobs and driver’s licenses, pursue higher education, start businesses, become more financially secure, and generate more economic activity in their communities, survey studies show.
Three federal judges, including Bates in the District, found that the reasons the government gave for shutting down DACA were inadequate and did not explain why it thought the program was unlawful.
The courts then reopened DACA for participants to renew their two-year work permits.
Final briefs in the New York case are due in October, and in California, attorneys are awaiting a decision from a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.
With three district courts keeping DACA alive, Paxton filed a new lawsuit — Texas v. USA — in May in the Brownsville federal district court, where the attorney general previously found success blocking Deferred Action for Parents of Americans. Texas and the attorneys general of seven other states asked Hanen to put a nationwide halt on issuing additional work authorization permits.
“DACA is unconstitutional because it rewrote federal law over the objections of Congress,” Paxton said in a statement. “DACA represents a dangerous view of executive power, which would allow the president to unilaterally set aside any duly enacted law. It cannot be allowed to stand without doing serious harm to our Constitution.”
In a hearing last week, Mexican American Legal Defense and Educational Fund attorneys argued that the attorney general cannot justify asking for an emergency injunction because there is no evidence DACA has harmed Texas. They questioned why the state waited six years after DACA was implemented to file suit. Recipients, they said, have contributed to the state’s economy as working adults and students.
“There is no great harm or any identifiable injury from their continued presence in doing what they’re doing,” Nina Perales, an attorney with MALDEF, argued in court. “And for that reason the balance of the equities in the public interest tip heavily toward maintaining the status quo.”
For now, advocates are encouraging DACA recipients, such as Viktor Esquivel of Houston, to apply for their renewals now. The 24-year-old retail manager had an appointment with U.S. Citizenship and Immigration Services this week and is volunteering with United We Dream, an immigrant rights organization, to push others to do the same.
But an analysis by the Center for American Progress, a progressive think tank, found last week that renewal rates are dropping. More than 64,000 DACA recipients who expect their protections to expire by the end of the year have not renewed.
Activists say the uncertainty surrounding the outcome of these cases makes the decision a perilous one for both current DACA recipients and first-time applicants and their families.
Eligible immigrants often live in households with family members of mixed status who could be targets for enforcement. Applying for the protections involves providing the government with sensitive personal information such as home address and biometric data.
“DACA always involves a risk,” Perales said. “It is a very personal decision every individual has to weigh.”