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Texas presses federal judge to end DACA program

Texas seeks a judgment winding down Deferred Action for Childhood Arrivals within two years. Supporters of the immigration program argue that would short-circuit the college education and military service of people enrolled in it.

HOUSTON (CN) — Having already declared an Obama-era policy that shields around 600,000 immigrants from deportation illegal, a federal judge indicated in a hearing Thursday he will also rule against a new version rolled out by President Joe Biden.

More than 580,000 undocumented immigrants from dozens of countries are enrolled in Deferred Action for Childhood Arrivals, which grants them work permits and protection from deportation for two-year renewable periods.

They range in age from their late teens to early 40s and have deep roots in the U.S., as many were brought to the country as children with their parents or became undocumented with their families when their visas expired. And now they have started families of their own. There are around 250,000 U.S.-born children of DACA recipients – kids who are U.S. citizens because they were born on American soil.

Texas is leading a challenge filed against the federal government in 2018 by nine red states who say DACA flouts the Immigration and Nationality Act by allowing people to stay in the country who should be removed.

The Lone Star State claims a new version of DACA enacted by Department of Homeland Security Secretary Alejandro Mayorkas last October, after President Biden tasked him with fortifying the policy, is “substantively identical” to the original regime.

Attorneys for the state Thursday urged U.S. District Judge Andrew Hanen, who in July 2021 declared DACA unlawful and barred DHS from approving any new applications, to issue a judgment that winds down the program and blocks the government from renewing any applications two years from the date of the judgment.

But Nina Perales of the Mexican American Legal Defense and Educational Fund, which represents 22 DACA recipients who intervened in the case to try to save the program, urged Hanen to keep it going based on the “significant reliance interests” of those who have come to depend on it.

She said many are still students and others are in the early stages of their careers in various fields including nursing, teaching, technology and the legal profession.

New Jersey has also intervened to defend DACA.

Mayur Saxena, a New Jersey assistant attorney general, echoed Perales’ statements about reliance. He said if Hanen grants Texas’ proposal, it would start a two-year “ticking clock untethered to what is happening” in DACA recipients’ lives.

If they are in school, graduation could take two to four years, Saxena noted. The countdown could also short-circuit their military service or prevent them from completing medical treatments essential to their health, he said.

President Barack Obama started the program in 2012 as a workaround of Congress’ failure to pass legislation overhauling the nation’s immigration laws.

It speaks to an underlying predicament: While an estimated 11 to 22 million people are living in the country without papers, the government lacks the resources to detain and deport all of them.

At bottom, the case centers on the age-old nativist grievance that undocumented immigrants take jobs that could go to U.S. citizens and residents. And Texas claims it is very costly.

Attempting to establish standing, Ryan Walters of the Texas Attorney General’s Office told Hanen the roughly 100,000 DACA recipients living in the state cost it $250 million per year in education, medical and social services costs.

“Do I even need to address standing?” Hanen asked Walters early in the three-hour hearing on dueling summary judgment motions before a packed gallery at the Houston federal courthouse.

The George W. Bush appointee observed he already found Texas had established standing based on its alleged economic harm in the July 2021 order in which he declared DACA unlawful. And a panel of the Fifth Circuit, known as the nation’s most conservative federal appellate court, agreed with him three months later.


Hanen appeared uninterested in Texas’ arguments against DACA. As the state's lawyers spoke, he slouched in his seat with a finger to his temple. But he had pointed questions for a Justice Department attorney and MALDEF’s lawyer about why they think the program is legal.

Justice Department attorney Jeff Robbins argued the $250 million annual costs Texas attributes to DACA cannot be relied on because the state is including its expenses for all undocumented immigrants living in the state, not just DACA recipients.

Hanen responded that the White House’s April 13 announcement of a proposed rule to expand “the definition of ‘lawful presence,’ for purposes of Medicaid and Affordable Care Act coverage, to include DACA recipients” would saddle states with 50% of those Medicaid costs for DACA enrollees.

He said it was “almost like a bait and switch” on Medicaid because the original and new DACA policies specifically excluded them from the health insurance program for low-income people.

“What do I do with that?” Hanen asked.

“Nothing,” Robbins replied, noting the proposal has not taken effect because it’s still in the period where the public can comment on it.

“Doesn’t that make it arbitrary and capricious … if you say one thing, then do another,” Hanen said.

He added he is worried that today 1.7 million people could qualify for DACA—if he had not barred DHS from approving new applications—but nothing would stop DHS from expanding it to protect 10 million paperless immigrants.

To qualify for DACA, one must have been under 31 as of June 15, 2012, when the program started, came to the U.S. when they were under 16 and continuously lived here since June 15, 2007.

They must also be currently enrolled in school, have graduated, or obtained a GED, or be an honorably discharged U.S. military veteran. And they cannot be convicted of any serious crimes.

Backing a justification for DACA made by both the Obama and Biden administrations, Perales, the MALDEF attorney, argued DACA is an exercise of prosecutorial discretion U.S. presidents have used for decades, most notably a “family fairness” policy that President Ronald Reagan implemented in the late 1980s in which he decided not to deport minor children of immigrants who had been allowed to apply for green cards, i.e. permanent residency, by a law he signed in 1986.

Reagan’s successor, President George H.W. Bush, expanded the policy to allow all spouses and unmarried children of people who gained legal status under the 1986 law to apply for permission to remain in the country and work permits.

Perales said Texas was trying to shoehorn a policy dispute into a legal one.

“Work authorization and lawful presence stem from other statutes not at issue here,” she stated.

Hanen countered that the way people and states voice their opinions is by electing representatives and senators to Congress. “And the INA [Immigration and Nationality Act] makes DACA recipients deportable. So public policy has spoken through Congress,” he said.

The judge took the matter under advisement and said he would rule on the dueling motions as quickly as he could.

The Supreme Court saved the original DACA from President Donald Trump’s efforts to do away with it with a 5-4 order in June 2020.

The legal battle over the new iteration is also expected to eventually land at the high court.

Monserrart Montalro, a 28-year-old DACA recipient, said in an interview after the hearing she is from Mexico and has lived in the U.S. for 27 years.

She recently graduated from University of Houston—Clear Lake with an environmental management degree and said following the DACA litigation has inspired her to pursue a law degree.

Asked what she thought of the arguments, she said, “All we can do is have faith that [Hanen] sees and hears us, even though only a couple of us were in the courtroom. . . . We’re just going to keep fighting.”

A member of the Washington D.C.-based immigrant advocacy group, United We Dream, Montalro said it seems like more undocumented people are joining the movement, and pushing Congress to come up with a solution.

Jamie, 18, is a member of the Woori Center, a Philadelphia-area nonprofit that is an affiliate of the National Korean American Service and Education Consortium (NAKASEC).

Two DACA-protected intervenors in the case are members of NAKASEC.

But Jamie, who asked to be identified by her first name only, does not qualify for DACA.

“I applied for DACA when I was 16 but when Judge Hanen got DACA wrong in 2021 all new applications were put on hold, including mine,” she said at a rally in front of the courthouse following the hearing.

“Now I’m a senior in high school and I’m worried about my future. I’m here to show Judge Hanen that we’re all real people. We’re tired. We’re always constantly in survival mode. And we just want our basic human rights that we all deserve.”

In addition to Texas the plaintiff states are Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia.

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