Judge considers Texas bid to end DACA, focusing on his prior rulings

August 8, 2018 GMT

A federal judge in Houston heard arguments Wednesday on whether he should end a temporary work permit program for young immigrants who came here illegally as children.

Such a finding by U.S. District Judge Andrew Hanen in the closely-watched lawsuit brought by Texas Attorney General Ken Paxton and nine other states would set up conflicting rulings about the fate of the Deferred Action for Childhood Arrivals program, known as DACA.

That would likely force the issue into the hands of higher courts, further prolonging a state of limbo for more than 700,000 young immigrants who have qualified for DACA since President Barack Obama unveiled the program in 2012.

President Donald Trump’s administration rescinded it last fall, though three federal judges have since kept the program alive. A ruling last week ordered the government restart accepting new applications. Texas has the most DACA recipients in the nation after California, with more than 120,000 such young immigrants.


In the three-hour hearing in Houston’s downtown federal courthouse, Hanen focused much of his questioning on how the program compares with his ruling several years ago against an expansion of DACA and another initiative that would have granted provisional work permits to a few million parents of Americans who have been here illegally for years.

A Texas-led coalition of 26 mostly Republican states successfully sued in federal court in McAllen before Haner to block those programs. Hanen’s injunction was appealed to a short-handed Supreme Court in 2016, which split on the issue and left his ruling in place.

Lawyers with the state attorney general’s office argued Wednesday that the program is as unlawful as the two Hanen halted, and that Texas has legal standing to sue because it suffers financial damage as a result of having to provide services to DACA recipients in the state.

“This not a close case,” said state attorney Todd Disher. “The issue in front of the court are legal questions that have already been decided.”

Paxton, who attended the hearing, said in a statement that DACA is unconstitutional.

“It rewrote federal law over the objections of Congress,” Paxton said. “DACA represents a dangerous view of executive power, which would allow the president to unilaterally set aside any duly enacted law.”

Lawyers for the Mexican American Legal Defense and Education Fund, an advocacy group representing 22 DACA recipients in Texas, argued that the claims about them draining state resources are “both irrelevant and grossly inflated,” and that Texas had not provided specific evidence of their costs.

They noted the state had also not complained this time about the expense of issuing driver’s licenses to such immigrants, which had been one of the main arguments to block the two earlier programs.

Disher said those licenses had already been granted so the cost was moot.


Nina Perales, an attorney for MALDEF, argued that Hanen’s previous ruling was not “a magic wand” that resolved this case.

She questioned why Texas had waited six years to fight a program it said was causing “irreparable” damage, and had not even tried to include it in its efforts to stop the expanded DACA program before Hanen.

“It certainly doesn’t line up with any claim of injury,” Perales said.

The judge, who was appointed by President George W. Bush and has often taken strict views on immigration, questioned lawyers about whether the DACA program was truly discretionary, an issue in arguments on the blocked programs.

All three rely on the legal concept of deferred action, a practice the federal government has employed for decades to delay the deportation of certain immigrants and grant them provisional work permits. The policy allows the government to weigh certain factors — including if immigrants are very young or very old and what contribution they have made to society — in delaying their deportation.

Texas never disputed the government’s right to grant deferred action, but contended the blocked programs would allow a mass group of immigrants to apply, who would almost all be approved, rather than on a case-by-case basis.

Rachel Wainer Apter, a lawyer with the New Jersey Attorney General’s office arguing the case with MALDEF, said in court that DACA was different because it applied to a much smaller pool of recipients who had to meet certain criteria and was related to a population whom Congress has not yet addressed.

Hanen wondered whether it would act against congressional intent to continue the program since lawmakers have not been able to agree on what to do with such young immigrants. But Wainer Apter said those failed proposals all included a pathway to citizenship; DACA does not.

The judge asked lawyers to provide him with arguments Monday on whether the program would still be unlawful if it was truly discretionary.

The clock is ticking.

U.S. District Judge John D. Bates of the District of Columbia, who has said the government’s decision to rescind DACA was “arbitrary” and “capricious,” ordered last week that it must resume accepting new applications. He delayed his order until Aug. 23.

Several protesters in orange shirts gathered Wednesday outside the federal courthouse in their support of DACA.

“This is a decision, not on random people and faces, but on people that live here,” said 29-year-old Daniel Candelaria, who is from Mexico and has DACA. “Ken Paxton and his lackeys in Texas government are only puppets in Trump’s administration.”

Karla Pérez, a 25-year-old recent graduate from the University of Houston who is one of MALDEF’s clients in the suit, said she came here from Mexico when she was 2-years-old and that DACA has allowed her to remain and become a lawyer.

“Six years ago we asked immigrant youth to come out of the shadows if you met certain criteria,” said New Jersey Attorney General Gurbir Grewal, who attended the hearing. “This country was really the only country they called home. For six years, the state of Texas did nothing … and somehow it is now unlawful.”