News

Texas Judge Says DACA Is Probably Illegal, But Leaves It In Place

By Joel Rose

Published August 31, 2018 at 4:36 PM CDT

Supporters of the Deferred Action for Childhood Arrivals Act and others demonstrate outside the 9th Circuit Court of Appeals in Pasadena, Calif., in May. The Trump administration failed to convince a U.S. appeals court that it was justified in ending the program, but a Texas judge on Friday ruled in a separate case that DACA was likely illegal.

A federal judge in Texas declined to issue a preliminary injunction in a case over the future of DACA — but he says the six-year-old program is likely unlawful.

The decision is a setback for Texas and nine other states that are suing to terminate DACA. The Obama-era program protects approximately 600,000 immigrants from deportation and allows them to work legally, even though they were brought to the country illegally as children.

But the order from Federal District Judge Andrew Hanen, issued Friday afternoon, may be only a temporary reprieve for DACA recipients: Hanen held that the plaintiffs are likely to succeed in their argument that the program is unlawful because it oversteps the authority of the executive branch.

"If the nation truly wants a DACA program," Hanen wrote, "it is up to Congress to say so."

Still, Hanen declined to put even a temporary halt to DACA because he found that Texas and the other states waited too long to bring their case.

Friday's order came as a surprise to many because Hanen previously had blocked a similar Obama-era program — Deferred Action for Parents of Americans — before it could take effect. He said the circumstances of this case are different.

"Here, the egg has been scrambled," Hanen wrote. "To try to put it back in the shell with only a preliminary injunction ... and perhaps at great risk to many, does not make sense."

Immigrants' rights advocates called the order an important win for DACA recipients.

"Today DACA beneficiaries like myself and my little sister breathe a sigh of relief," said Greisa Martinez, the deputy executive director of United We Dream. "But we aren't out of the woods yet."

The Trump administration also is seeking to end DACA, but it has been blocked by federal courts in California, New York and Washington, D.C. Existing DACA recipients can renew their status while those cases remain unresolved, but the program is not accepting new applicants.

Texas Attorney General Ken Paxton is leading the coalition of states that are challenging DACA. He argues that Hanen's order vindicates their position as well.

"We're now very confident that DACA will soon meet the same fate" as DAPA, Paxton said in a statement. "President Obama used DACA to rewrite federal law without congressional approval. Our lawsuit is vital to restoring the rule of law to our nation's immigration system."

Paxton and the other plaintiffs are likely to appeal Hanen's order to the 5th Circuit Court. A victory for them would increase the likelihood that DACA's fate ultimately will be determined by the Supreme Court.