As Texas and Other States Close In, Can DACA Survive Latest Legal Attack?

The Trump administration plunged thousands of migrant children into a frantic limbo this summer when it separated them from their parents in a bid to deter illegal immigration on the southwest border, igniting weeks of protest and litigation.

But the chaos has obscured a much longer-running dispute over the future of another group of unauthorized immigrants: the nearly 700,000 young people who were brought to the United States as children by their parents, and who received temporary permission to live and work in the country through the Obama-era program known as Deferred Action for Childhood Arrivals, or DACA.

A federal judge in Texas heard arguments Wednesday in a bid by Texas and eight other states to end the program, which they say went beyond President Barack Obama’s authority and imposed a heavy financial burden on states saddled with the costs of illegal immigration.

A coalition of border town mayors and business groups, including Southwest and United airlines, filed a brief in the case arguing that ending DACA and taking thousands of young workers out of the economy could cost $460 billion in economic activity over the next decade.

Judge Andrew S. Hanen of the U.S. District Court in Houston did not say when he would rule, and a host of questions — legal, political and economic — continue to swirl around one of the few significant immigration initiatives the federal government has advanced in recent years.

Though he had promised on the campaign trail to shut down the DACA program, Trump wavered for months after he took office, praising the young people who had been helped and saying that he wanted to show them “heart.” The Trump administration ultimately announced it was canceling the program last September. It was up to Congress, administration officials said, to produce a solution for the young immigrants before their permits expired. But months of congressional haggling have led nowhere, and in the meantime, groups on both sides of the issue have turned to the courts in the hope of resurrecting the program — or ending it for good.

The impasse has left DACA hobbled but alive, and its participants — many of whom were able to start driving legally, go to college and find jobs thanks to their temporary permits — mired in uncertainty.

A resolution to the standoff is unlikely to come anytime soon. That is because several federal courts weighing the program’s future appear to be on conflicting paths, and unless Congress comes through, only the Supreme Court will ultimately be able to resolve the issue.

There are several simultaneous lawsuits centered on DACA, including one in California, one in New York, one in Washington and one in Texas. Federal judges in California and New York have ordered the Trump administration to allow people who already have temporary legal status under DACA to apply for two-year renewals on their work permits, just as they would have been able to do before the administration ended the program. The government is complying with those orders, accepting and processing renewals, but it has appealed the decisions to higher courts.

The judge overseeing the lawsuit in Washington, Judge John D. Bates of the U.S. District Court for the District of Columbia, went even further Friday by reaffirming an earlier ruling that essentially tells the government to reinstate DACA and start taking new applications from anyone who is eligible for the temporary status. But that does not mean young immigrants can start submitting their applications; the government has until Aug. 23 to appeal, and has signaled that it intends to fight.

Even before that date comes around, however, the fourth lawsuit, the one heard in Texas on Wednesday, could complicate matters even further. A group of nine states led by Texas sued to end the program permanently in May, after the California and New York judges had ruled in favor of the program. That lawsuit landed in front of Hanen, who previously made his tough-on-immigration views clear when he ruled in 2015 against another immigration program the Obama administration had created as a companion to DACA. That program, Deferred Action for Parents of Americans, which was intended to shield some parents of U.S. citizens and legal residents from deportation, never went into effect; the Supreme Court deadlocked over it in 2016, leaving Hanen’s decision in place.

In Wednesday’s court hearing, lawyers for Texas said that the judge should issue a preliminary injunction ending the program. (The Trump administration refused to defend the program against Texas’ lawsuit, leaving the Mexican American Legal Defense and Educational Fund to intervene on behalf of 22 DACA recipients.)

Texas is arguing that DACA is little different from the Deferred Action for Parents of Americans program, and therefore deserves the same treatment from Hanen. But lawyers for MALDEF pointed out one big difference: DACA, unlike DAPA, has already been in effect for years, they argued in court, and Texas has not been able to show that the program has harmed the state.

“Texas was not able to point to evidence that DACA recipients are costing the state anything, and in fact the evidence in the case is that by being able to work and live and participate in civic society and the economy, that Texas overall is better with DACA recipients,” said Nina Perales, the group’s lawyer.

But Todd Lawrence Disher, the Texas special counsel, said in court, “No amount of economic activity makes lawful what is otherwise unlawful.”

There is more uncertainty ahead.

If Hanen does issue an injunction forcing the government to freeze DACA, it could set up a clash between his ruling and those of the three other judges: The Trump administration could be under conflicting orders to end the program; to resurrect the program and allow new applications; and to keep the program but only for those already enrolled, allowing them to renew their two-year work permits. An appeals court is already considering the California case, and Hanen’s ruling, whatever it is, will probably be appealed to another appeals court. But those two appeals courts could rule differently.

The Supreme Court tends to step in to referee when appellate courts disagree, but a full decision might not happen until next summer. The court could issue an emergency ruling before then, but with the court down to eight justices for the moment, the possibility of a 4-4 deadlock appears strong.

If Judge Brett Kavanaugh is confirmed as the court’s ninth justice, DACA seems unlikely to survive a full Supreme Court vote.

Absent guidance from a higher court, officials may be left to decide how to interpret the welter of legal decisions on their own.

“It’s really hard to say how this plays out,” said Thomas A. Saenz, MALDEF’s president and general counsel, “except that ultimately the conflict would have to be resolved at a higher level in the court system.”

For all the sound and fury of the court battles, recipients could end up in much the same place they were last September: staring down the eventual end of the program. Every month or two has brought a jolt of hope or disappointment; confusion about whether renewals or new applications will be allowed is widespread.

What is certain is that those with DACA status can currently apply for a two-year renewal at any time, regardless of when their current permit expires. Advocacy groups have been advising everyone who is eligible to renew as soon as possible so that they can hold onto their status for a little while longer, even if the program is canceled. They say it is especially urgent for people whose permissions expire before 2020 to renew, since the permits are only good for two years.

“There’s a door that is slowly closing, and we’re trying to push as many eligible DACA recipients through that door to renew and hold onto work permits and protections while they can,” said Sanaa Abrar, advocacy director for United We Dream, a group that represents young immigrants brought to the country as children who lack full legal status.

But many people who are eligible to renew cannot afford the $495 processing fee. Advocates are raising money to help cover those costs; United We Dream has raised $1.4 million in the past 10 months, Abrar said.

“DACA has not only allowed me to remain in the country that I have called home since I was 2 years old,” Karla Perez, a 25-year-old law school graduate and DACA recipient involved in the Texas lawsuit, said after Wednesday’s hearing. “It has allowed me to thrive.”