The state of Texas will return to federal court Thursday in its latest effort to dismantle legal protections for tens of thousands of undocumented immigrants who call Texas home.
At stake is the future of the Deferred Action for Childhood Arrivals, or DACA, program, which allows qualified applicants who were brought to the U.S. as children before age 16 to receive a two-year renewable work permit and a stay of deportation.
At the end of 2022, there were more than 95,000 DACA recipients in Texas, the second highest total after the 165,000 in California. There are more than 580,000 enrolled in this program in the country, according to U.S. Citizenship and Immigration Services Statistics.
Thursday’s hearing is the latest in a yearlong effort to end the program because of Texas’ claim that the policy, which began in 2012 under former President Obama, was implemented illegally. The initial fight led to a U.S. Supreme Court ruling in 2020 that determined the Trump administration did not end the program in accordance with federal procedure. But that decision did not address the legality of the program.
U.S. District Judge Andrew Hanen, who will hear arguments Thursday, had previously ruled that the Obama administration did not implement DACA in accordance with federal law. The Fifth Circuit Court of Appeals agreed, but the program has been upheld for current recipients, although new applications have been put on hold pending a final determination.
The Biden administration ended a rule last year that would strengthen DACA’s protections for its recipients. The appeals court remanded the case back to Hanen to determine the legality of Biden’s rule, but Texas Attorney General Ken Paxton’s office has continued its effort to end the program as that decision unfolds. Paxton’s office has since asked Hanen to issue a summary judgment and declare the rule and the program illegal.
During a conference call with reporters Tuesday, Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, or MALDEF, laid out that the focus of Thursday’s hearing revolves around two main issues. MALDEF is arguing the case on behalf of DACA recipients.
“We will argue before Judge Hanen that neither Texas nor any of the other states challenging DACA have standing to sue, meaning they have not identified any harm that happens to them as a result of DACA recipients living in their states,” he said. “That means they can’t go to court and file a case because you have to have standing to sue.”
The other argument is that DACA is legal under existing law, as federal prosecutors have used what is known as prosecutorial discretion for years. Prosecutorial discretion is a practice used by prosecutors, in this case federal prosecutors, to determine which cases to prioritize and pursue.
“DACA is consistent with many U.S. government policies in the past under different presidents,” Perales commented. “And over time, DACA simply allows the federal government to decide with respect to a particular individual that the government will exercise prosecutorial discretion. The government is going to choose to defer action on that individual. That’s why it’s called deferred action.”
There is also another important note regarding Thursday’s proceedings. Paxton was suspended from his official duties after the Texas House of Representatives voted overwhelmingly Saturday to impeach him over findings that he abused his office and committed bribery, among other alleged crimes, to benefit a donor.
On Wednesday afternoon, Gov. Greg Abbott appointed former Texas Secretary of State John Scott as acting attorney general. But it is unclear what direct role, if any, he will play in the ongoing litigation. The Texas attorney general’s office did not respond to a request for comment on how the indictment will affect the statewide case Thursday.
During the press conference, MALDEF general counsel Thomas Saenz said he could not predict what Paxton’s impeachment and suspension will mean for the state’s case. But he did not predict a significant change in the position Texas has taken.
“Much of the Texas leadership, from the governor on down, has rhetorically engaged in such anti-immigrant rhetoric in recent times that it seems unlikely there will be a significant change of position in this case, despite the historic impeachment,” Saenz added. .
It is unclear how quickly Hanen will rule, but Perales said he did not anticipate an immediate decision after Thursday’s arguments.
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