Despite court victories, DACA faces biggest legal test ahead of Biden presidency

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A federal judge who has issued scathing rulings against Obama-era immigration policies is set to review the legality of a deportation relief program for hundreds of thousands of young undocumented adults known as “Dreamers,” just weeks before President-elect Joe Biden takes office.

Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas will hold arguments on Tuesday in a lawsuit that seeks to wind down Mr. Obama’s Deferred Action for Childhood Arrivals (DACA) program, which Hanen has previously said is likely illegal.

The case before Hanen represents the most imminent threat to DACA, which has so far survived a years-long campaign by the Trump administration to end it. If Hanen declares DACA unlawful, the ruling could hamstring Mr. Biden’s pledge to safeguard the program and place more than 640,000 current recipients, as well as 300,000 potential new applicants, in legal limbo.

“This case is important because Texas and several other states want a judge to declare that DACA is unlawful and to block DACA into the next presidential administration,” Nina Perales, a lawyer for the Mexican American Legal Defense and Educational Fund representing the program’s beneficiaries, told CBS News.

While Trump administration officials are technically the defendants in the case, Perales’ group and the state of New Jersey have been representing DACA recipients because the Justice Department has agreed with Texas and other GOP-led states acting as plaintiffs that the program should be ultimately dismantled.

“Plaintiffs and Federal Defendants agree — DACA is unlawful,” Trump administration lawyers wrote in June 2018.

The coalition of states challenging DACA have not asked Hanen to immediately terminate the protections for current program enrollees. Instead, they’ve asked him to either suspend DACA by barring new applications and renewals, or to delay an order terminating the program in its entirety for two years.

In November, the Trump administration asked Hanen to allow the Department of Homeland Security to alter DACA even if he suspends the program. Unlike in previous filings, it did not say it agreed DACA is illegal.

In recent years, DACA recipients and their allies have garnered significant legal victories, convincing federal judges across the country and the Supreme Court to rule that the Trump administration violated administrative law when it moved to end the Obama-era initiative in September 2017. More recently, a federal judge in New York ordered the program’s full reinstatement after finding that Acting Homeland Security Chad Wolf lacked the authority to issue new restrictions, including a ban on new applications.

Unlike these court cases, however, the lawsuit being reviewed by Hanen does not focus on the Trump administration’s effort to end DACA. Instead, it centers on whether Mr. Obama had the authority to create the program in 2012 and whether his administration properly implemented it.

If his previous rulings are any indication, Hanen seems likely to answer both questions in the negative. An appeal of such a ruling would be filed before the 5th Circuit Court, arguably the most conservative federal appellate body in the country, and the ultimate arbiter could be the Supreme Court.

Appointed by President George W. Bush in 2002, Hanen gained national attention during the Obama presidency for strongly admonishing the government and its immigration practices in his opinions. In 2015, he blocked Mr. Obama’s bid to expand DACA eligibility and create a new deportation relief program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

The 5th Circuit subsequently upheld Hanen’s order, which stemmed from a lawsuit filed by Texas and 25 states. The DAPA program, which could have benefited millions of undocumented parents of U.S. citizens and green card holders, never went into effect and remained blocked after an equally divided Supreme Court affirmed the lower court ruling in the summer of 2016.

After the Trump administration’s attempted wind-down of DACA was interrupted by the courts, a group of Republican state attorneys general, led by Ken Paxton of Texas, sued again in May 2018 and the case was transferred to Hanen. Paxton asked him to kill the program. The Mexican American Legal Defense and Educational Fund and New Jersey subsequently intervened in the case and have been arguing for DACA’s survival ever since. 

In late August 2018, Hanen issued a 117-page opinion on a motion for a preliminary injunction finding that the GOP attorneys general had “clearly shown” that they were likely to prevail in their argument that DACA is unlawful and should be blocked. He found DACA to be contrary to federal immigration law and that the Obama administration appeared to have violated legal administrative requirements by implementing the initiative through a memo, rather than through a rule-making process open to public comments.

“This program, which allots lawful presence and its corresponding benefits to more than a million aliens, must be committed to the decision-making power of Congress, not the Executive alone,” Hanen wrote. “Nevertheless,  if implemented by the executive branch, it must at least undergo the formalities of notice and comment.”

To the surprise of many, including DACA advocates, Hanen did not terminate the program, saying Texas and the other states waited too long — nearly six years — to ask for a preliminary injunction. He also said that, in the context of a preliminary injunction, the interests of hundreds of thousands of immigrants with DACA benefits outweighed those of the Republican-led states.

“Here, the egg has been scrambled,” Hanen said. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”

Perales, the lawyer representing DACA recipients, will be arguing Tuesday that Texas and the other states do not have legal standing to challenge the program and have failed to demonstrate they are harmed by it. Hanen, however, has preliminarily determined that the states do have standing, citing their argument that they have to provide DACA recipients certain social services. 

Any financial burden on the states, Perales has argued, is not directly linked to DACA recipients or is offset by their economic contributions. 

Perales said Hanen’s prior rulings don’t necessarily dictate his decision on the current motion. “He will take a full look at the case where it is now,” she added.

DACA shields undocumented immigrants who came to the U.S. as minors before 2007 from deportation and allows them to work in the U.S. legally. It does not place recipients on a pathway to U.S. citizenship. Eligibility requirements for the program include arriving in the U.S. before the age of 16, earning a high school diploma, GED or serving honorably in the military and not having serious criminal convictions, including any felonies.

León Rodríguez, who oversaw DACA as Mr. Obama’s second U.S. Citizenship and Immigration Services director, said that while an unfavorable order by Hanen could limit Mr. Biden’s fulfillment of his campaign promises, it could also “shake” Washington and prompt lawmakers to pass legislation enacting the program into law. DACA, he said, was always meant to serve as a “Band-Aid to stop the bleeding.”

“In one way it could complicate things for the Biden administration,” Rodríguez told CBS News. “In a different way, it could bring about what needs to happen anyway, which is that Congress and the executive branch in partnership need to take responsibility for the issue of the Dreamers.”



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