As the fate of the Deferred Action for Childhood Arrivals (DACA) rests on the rulings of three circuit judges, a Texas-filed lawsuit seeking to shut down the immigration program could trigger a legal battle that may force the Supreme Court to finally decide on the matter.
In April this year, judges from the Second and Ninth Circuits ruled that the Trump Administration’s rescission of DACA was arbitrary and capricious, ordering the DHS to reinstate the program and accept DACA renewal applications. A few days later, Judge Bates of the D.C. Circuit likewise found that the Administration failed to adequately explain the legal basis for winding down DACA, ordering the government to continue accepting new applications, but only if it failed to come up with a better justification in 90 days.
Now, a lawsuit filed by the 7-state coalition of Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, and Texas seeking to terminate DACA could finally raise the issue to the Supreme Court. The states are banking on their chances of getting a judge to issue a nationwide order to stop DACA, which would conflict with the existing rulings of the three federal courts.
It’s the kind of judicial conflict that calls for the High Court to intervene and rule on the matter.
Created through an executive order by former President Barack Obama in 2012, DACA provides temporary relief from deportation to undocumented immigrants brought into the country as minors. DACA recipients, who number in the hundreds of thousands, are allowed to renew their immigration status and work permits every two years.
The 7-state coalition argues that DACA’s creation was unconstitutional, as only Congress has the authority to make changes to immigration policy—an argument Trump also made in the past.
But where it gets interesting is how Texas is looking to follow the same path it took to terminate another Obama-era immigration program—the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA was an unsuccessful program designed to protect undocumented immigrants with children who are U.S. citizens from deportation.
The states filed the lawsuit before U.S. District Judge Andrew Hanen in Brownsville, Texas, who, in 2016, had ruled to strike down DAPA and an expansion of DACA—a decision later upheld by an appeals court. And because the Supreme Court was split 4-4 after the death of conservative Justice Antonin Scalia, the lower court’s ruling was left in place.
Texas Attorney General Ken Paxton is hoping to repeat this outcome, forcing the Supreme Court to finally weigh in on the fate of DACA. Of course, there’s also the possibility that the White House will simply issue a memo to replace its September announcement, this time with a better and more legally sound explanation to why it is winding down DACA.
If anything, these legal squabbles mean that the future of DACA recipients has never been more uncertain. If you, or a loved one, are under DACA status and want to discuss your legal options should the worst happen, don’t hesitate to schedule a consultation with the legal team of the Lyttle Law Firm. Contact our offices at (512) 215-5225 to schedule a consultation with Austin immigration attorney Daniella Lyttle.