BROWNSVILLE, Texas (CN) — Facing the prospect of conflicting injunctions ordering it to end the Deferred Action for Childhood Arrivals program and keep it going, the Trump administration on Friday urged a Texas federal judge not to further complicate the legal battle over DACA.
Joined by the attorneys general of six other Republican-controlled states, Texas Attorney General Ken Paxton filed a federal lawsuit on May 1 seeking to stop the government from issuing or renewing any DACA permits.
Texas’ chances of winning a preliminary injunction are promising because the case is being handled by U.S. District Judge Andrew Hanen, a George W. Bush appointee, who has been hostile to DACA.
Hanen blocked former President Barack Obama’s efforts to expand the eligibility for DACA, and to implement a sister program, Deferred Action for Parents of Americans, DAPA, which would have shielded parents of U.S. citizens and legal residents from deportation.
Hanen sided with a Texas-led 26-state coalition that challenged those immigration enforcement directives with a lawsuit in 2014.
The Fifth Circuit agreed with Texas and Hanen that Obama had overstepped his authority in starting the programs, and found Texas had standing because it subsidizes driver’s licenses for DACA recipients, of which there are an estimated 125,000 in Texas.
The U.S. Supreme Court deadlocked 4-4 in June 2016, upholding the Fifth Circuit’s injunction.
The federal government’s position in the litigation is unusual because it is the defendant, agreeing with the plaintiffs’ claims that the original DACA program cannot stand.
The Trump administration announced in late summer 2017 it was winding down DACA after Attorney General Jeff Sessions said that the program, started by Obama in 2012, is illegal and cannot be defended in court.
“As the Attorney General concluded, DACA is unlawful because it was an ‘open-ended circumvention of immigration laws’ and suffered from the same legal defects that the courts had recognized with respect to the DAPA memorandum,” the Justice Department said Friday in its response to Texas’ motion for a preliminary injunction.
The position mirrors the Trump administration’s announcement last week that it will not defend another of Obama’s reforms, the Affordable Care Act, against a Texas-led court challenge that claims the health care law is unconstitutional.
DACA protects from deportation, for renewable two-year terms, an estimated 700,000 immigrants brought to the United States as children, and lets them get work permits and driver’s licenses. Obama started DACA with an executive order to bypass a Congress that failed to pass legislation to overhaul the country’s immigration laws.
Because the government lacks the money to deport the estimated 11 to 12.5 million immigrants living without papers in the United States, the Obama administration said, DACA is a lawful use of prosecutorial discretion.
Public opinion polls show most Americans believe DACA recipients, nicknamed Dreamers, deserve a pathway to citizenship. Even President Trump has voiced sympathy for them.
But efforts to find a solution in Congress have stalled, with Democrats claiming Trump is using Dreamers as leverage to try to drastically reduce legal immigration and get funding for his pet project, building a wall across the Mexico border.
After the Trump administration moved to phase out the program, DACA advocates, including Maine, Maryland, Minnesota and California, rushed to courthouses across the country, filing 12 lawsuits in six federal courts to try to stop Trump from ending the program.
They found an ally in U.S. District Judge William Alsup in San Francisco. He ordered the Trump administration on Jan. 9 to continue processing DACA renewal applications, with a preliminary nationwide injunction.
Alsup found the administration’s decision to end the program “arbitrary and capricious,” because it was based on the “flawed legal premise” that DACA is illegal.
In February, U.S. District Judge Nicholas Garaufis in Brooklyn followed up Alsup’s order with a similar nationwide injunction.
U.S. District Judge John Bates in the District of Columbia gave hope on April 24 to immigrants who were foreclosed from applying for DACA, when he ordered the government to resume taking new DACA applications.
Bates stayed his order for 90 days, however, to give the Department of Homeland Security, which oversees immigration agencies, time to “better explain its view that DACA is unlawful.”
Given the possibility that Hanen will issue an injunction to block DACA, conflicting with the nationwide injunctions keeping it on life support, the Department of Justice asked him on Friday to stay such an order for 14 days so it can seek stays for all DACA litigation.
“A stay would serve the public interest because it would be impossible for the United States to comply with conflicting injunctions, and a stay would facilitate the orderly resolution of the litigation over the DACA policy,” the government says in its brief.
The Justice Department also asked Hanen to limit any injunction to the plaintiff states: Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia.
It blasted Alsup and Garaufis for what it called “legally incorrect and overbroad nationwide preliminary injunctions requiring federal defendants to continue (most of) DACA nationwide.”
Lead counsel on the government’s response was Jeffrey S. Robins, attorney in charge and assistant director of Justice Department’s Civil Division in its Office of Immigration Litigation, in Washington, D.C