Dreamers Win for Now in Texas, But Fight Is Far From Over

(Bloomberg) -- Nearly 700,000 undocumented immigrants brought to the U.S. as children won another ruling preserving their protection from deportation, though the Texas judge who sided with them cast serious doubt on the legality of the so-called Dreamer program.

U.S. District Judge Andrew Hanen in the border town of Brownsville ruled that Texas Attorney General Ken Paxton waited too long to challenge a program that’s been in place for six years and allows the young immigrants to live, work and study legally in America. But the judge gave Texas and its allies in nine other Republican-led states a chance to appeal and try again to block the Deferred Action for Childhood Arrivals program, known as DACA, even as President Donald Trump and Congress remain in a stalemate over whether to preserve, modify or phase it out.

In a 117-page order, Hanen agreed with Texas and the Trump administration that the DACA program for immigrant youngsters is almost identical to the Obama-era program aimed at protecting undocumented parents of American citizens that Hanen struck down previously. But the judge said he could could find no legal justification to grant an emergency halt to DACA when the program has been functioning since 2012.

Judges in New York, California and Washington have halted the Trump administration’s efforts to terminate DACA in rulings that the Justice Department is now appealing. In the Texas case, Dreamers were in no real danger of immediate deportation because the red states asked only that the government be prevented from issuing any new work permits or DACA renewals.

Unlike the other judges, Hanen found that the Dreamer program probably violates federal law, namely the Administrative Procedures Act, in how it was enacted and said Texas and its allies would be harmed if it remains in place.

‘Popular Program’

Because DACA was never intended to be permanent, its legitimacy needs to be resolved, the judge wrote, while acknowledging it’s a “popular program and one that Congress should consider saving.”

DACA is of “major import to a large segment of this country, and all parties are in need of and desire a definitive answer as soon as they can get one," Hanen wrote, in allowing an appeal to be pursued. “A definitive appellate ruling one way or the other on this purely legal question could lead to the immediate conclusion of this case.”

Paxton said he’s encouraged by Friday’s ruling that the program ultimately will be struck down.

“We’re now very confident that DACA will soon meet the same fate as the Obama-era Deferred Action for Parents of Americans program," 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."

The Justice Department agreed in its own statement.

“As the Justice Department has consistently argued, DACA is an unlawful attempt to circumvent Congress, and we are pleased the court agreed today,” spokesman Devin O’Malley said.

The Mexican American Legal Defense and Educational Fund, which has led the defense of DACA in Texas, said while it disagrees with Hanen’s views on the legality of the program, “today’s court decision appropriately leaves DACA in place with respect to over 100,000 Texans and hundreds of thousands of others nationwide.” The group called the lawsuit “abominable.”

‘Political Lawsuits’

“The time for political lawsuits is over; it is time to turn to serious policy solutions,” MALDEF President Thomas Saenz said in phone call with the media. “Congress should do its job and address overwhelming opinion that this is a population of immigrants that should be protected and allowed to continue to contribute in the country where they grew up.”

Hanen denied the request by Texas and the other red states to stop DACA in its tracks because he said it was more important to preserve the ability of the DACA recipients to work and travel freely in the U.S. while courts decide what to do with the program than it is to save some money for the states.

An expert hired by the immigrants-rights groups defending Dreamers testified that DACA recipients cost Texas more than $250 million annually in medical, education and social services, but many of those costs will continue even if DACA is outlawed, Hanen said. New Jersey and other DACA supporters have submitted testimony claiming Dreamers contribute more in taxes and economic benefit than they cost states in services. Hanen said he’d weigh both sides’ arguments later in the litigation, as both have merit.

In 2015, Hanen issued a ruling that kept DAPA from taking effect after it was challenged in a Texas court case that attracted the participation of three-fourths of U.S. states to one side or the other. An appeals court, and later, the Supreme Court, left Hanen’s order in place and the program died.

Texas and its allies urged Hanen, a George W. Bush appointee, to block DACA with the same arguments he used to shut down DAPA. Those arguments were essentially that the Obama administration had illegally usurped Congress’s lawmaking authority on immigration and had skipped key steps in federal policy-making rules.

An appeal of Friday’s ruling to the U.S. Circuit of Appeals in New Orleans may take months to play out. In the meantime, DACA’s fate may be decided by one of the other regional appeals courts reviewing the lower-court rulings that blocked the Trump administration’s cancellation of the program.

The case is Texas v. United States, 1:18-068, U.S. District Court, Southern District of Texas (Brownsville).

©2018 Bloomberg L.P.