The Trump administration is preparing for a legal stalemate that could allow it to circumvent several federal judges who have temporarily halted its plan to end the Deferred Action for Childhood Arrivals program. The net legal effect means 700,000 young undocumented immigrants—including 113,000 in Texas—who remain under the program’s protection may soon be vulnerable to deportation.
NBC reported this week that the DOJ filed a motion last Friday supporting the premise of a lawsuit filed in May by Texas Attorney General Ken Paxton and six other states. They argue that the Obama-era program violates federal immigration law. In the motion, DOJ attorneys told Brownsville federal judge Andrew Hanen that they agree with Paxton that DACA is illegal and acknowledged that a ruling against DACA would make it impossible for the federal government to simultaneously comply with two prior decisions by federal judges in New York and California in favor of DACA. The two judges ruled that the government must continue to accept new DACA applications and can’t move forward with its plan to end DACA until several lawsuits attempting to save the program make their way through higher appellate courts.
Hanen has historically opposed immigrant-friendly policies, and he’s largely expected to rule against DACA proponents in this case. If that happens, DOJ attorneys wrote that they would then ask the U.S. Supreme Court to temporarily nullify all federal injunctions regarding DACA, allowing the Trump administration to move forward with its original plan to end the program without interference from the ongoing litigation.
“Although the United States agrees that DACA is unlawful, here, the erroneous nationwide injunctions issued by district courts in the Eastern District of New York and Northern District of California would conflict with a preliminary injunction—and especially a nationwide one—in this case, subjecting the United States to inconsistent obligations,” the DOJ wrote in its motion, which you can read here. “If this Court nevertheless determines that an injunction is warranted here, it should stay such order for 14 days so the United States can seek stays of all the DACA injunctions in the respective courts of appeals and the Supreme Court. ”
The legal maneuver comes as Congress is preparing to vote on two immigration measures next week that include provisions for those currently under DACA protection. But there is concern that neither bill—one sponsored by Republican conservatives; the other by Republican moderates—will prevail. And any successful measure must still pass the U.S. Senate and get buy-in from Trump, who would have to sign any measure into law.
Trump ordered DACA’s end in September but gave Congress six months to pass a replacement before he would begin to phase out the program. DACA supporters quickly filed lawsuits challenging the order, with federal judges in New York and California issuing injunctions that temporarily barred Trump from disbanding DACA. Paxton, however, sued the federal government in an attempt to force them to repeal DACA. Hansen has always been expected to rule against DACA, but until now it has remained unclear exactly how the federal government would manage to comply with opposing federal rulings. Now that the Trump administration has showed its hand in the motion, immigrant advocates are worried that mass deportations of DACA holders—which has been a looming concern ever since Trump’s election—may soon be a reality.
“The fear factor that has resulted from the Justice Department’s filing in Texas is really scary for DACA recipients across the country,” Karen Tumlin, director of legal strategy at the National Immigration Law Center, told NBC News. About 700,000 people are covered by DACA, which protects undocumented immigrants who arrived here by 2007 and were under sixteen years old when they immigrated.
The potential DACA deportation crisis comes as the Trump administration is ramping up its anti-immigration policies. In April, Attorney General Jeff Sessions directed federal prosecutors along the border to adopt a “zero tolerance” policy against anyone who enters the country illegally. Earlier this week, Sessions dropped asylum protections for immigrants fleeing domestic abuse or gang violence. Federal immigration enforcement agencies have also dramatically increased the number of family separations at the border over the past few months.