Originally Published in Politico
Sabrina Rodriguez - February 10, 2021
The judge is likely to overturn DACA protections for more than 640,000 undocumented young people.
The Biden administration and Democrats on Capitol Hill have vowed repeatedly to secure a pathway to citizenship for millions of undocumented immigrants. But a federal judge in Texas could be the one to force them to take the first step in making it happen.
Advocates, attorneys and lawmakers expect a ruling within days — or weeks — on a court case that will determine the fate of the Deferred Action for Childhood Arrivals program, which provides protections for more than 640,000 immigrants brought to the country illegally as children.
Many anticipate that DACA will be ruled unlawful, given the Trump administration’s handling of the case and the judge’s track record on immigration. It would be the latest blow to the program, which has been caught in legal limbo since former President Barack Obama introduced it in 2012.
Still, despite its legal challenges, DACA remains popular, with widespread support among both Republicans and Democrats, who believe so-called Dreamers should be shielded from deportation and given legal status. But if DACA is overturned, recipients will be stripped of their protection from deportation and work permits. And that could pressure Congress to offer permanent legal status for Dreamers — and potentially other undocumented immigrants.
“The times where Congress [has been] most energized to move was when they felt they were in the middle of a crisis moment,” said Alida Garcia, vice president for advocacy at FWD.us, an immigration advocacy group.
But Garcia said she is “scared” because “we’ve gone through so many crisis moments on DACA that people have a bit of fatigue.” Congress doesn’t seem to get that — right now, the program is facing its greatest risk, she said.
“They need to move quickly,” she said.
Texas and eight other states are asking the court to end DACA. They argue the program is unconstitutional and forces states to bear extra costs from providing DACA recipients with services like education. Meanwhile, DACA proponents argue Obama acted within his executive powers to create the program and point to research documenting the program's benefits for both young immigrants and the country. The Center for American Progress, for example, estimates that ending DACA would mean a loss of billions of dollars in GDP for the states suing to overturn it.
Several advocates say they expect Hanen to rule against DACA because in 2015 he ruled against expanded DACA protections and another Obama-era program — Deferred Action for Parents of Americans and Lawful Permanent Residents, which would have given protections to as many as five million undocumented immigrants.
However, in 2018, Hanen declined to issue a preliminary injunction to temporarily stop DACA, but said the program as enacted by Obama was unconstitutional and that it was up to Congress to pass immigration reform.
If Hanen rules against DACA, however, it's unlikely he will shut down the program immediately — or even imminently. Hanen, a George W. Bush appointee, made clear in the December hearing that he was wary of a quick end to the program. And while an end to the program could make immigration reform more of a legislative priority, a drawn-out process could impact any sense of urgency on Capitol Hill.
The program has already faced several ups and downs. In 2017, former President Donald Trump tried to end the program. But in June 2020, the Supreme Court ruled against the Trump administration. It found the way the government rescinded the program was unlawful — but left the door open for other legal challenges. DACA applications resumed last December.
That's why immigrant advocates say Congress must pass legislation now that it has a Democratic majority and a White House sending the right signals.
A ruling on the Texas case could be “a forcing event or action that makes things move at a greater speed,” said Lorella Praeli, president of Community Change Action, a progressive grassroots group. “It changes the politics, creates that sense of urgency.”
However, Praeli said Congress shouldn’t wait for a ruling — or “crisis moment” — to take action since the program has never been fully safe.
On his first day in office, President Joe Biden released a comprehensive immigration reform bill with a path to citizenship for 11 million undocumented immigrants. It has been welcomed by many Democrats, but Republicans quickly shut it down — a reminder that it'll be challenging to pass in a 50-50 Senate. Biden also signed an executive order on day one to safeguard DACA.
But another DACA case heading to the Supreme Court would likely not play out as it did before given the high court's current makeup. The makeup of the Supreme Court has changed, and with a 6-3 conservative court, it feels like an uphill climb, Garcia said.
“We do not have the certainty that the DACA program and the recipients within it will be protected much longer,” Garcia said. “That’s why we’re pushing urgently for Congress to act."
Last week, Sens. Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.) reintroduced the Dream Act, which would provide a pathway to citizenship for an estimated 2 million undocumented immigrants brought to the U.S. as children, known as Dreamers. The bill has been around for 20 years without being signed into law.
“Passing the Dream Act is still my highest legislative priority,” a visibly emotional Durbin said in a 16-minute speech last week. He added: The Texas DACA case “is a reminder that a law has to pass.”
Meanwhile, Graham said he doubts the Dream Act would pass as a standalone bill, but rather part of a bigger immigration package. In the past, talk of a pathway to citizenship for Dreamers has been used by immigration hardliners to seek out stronger immigration enforcement and more border security.
But the Dream Act “will be a starting point for us to find bipartisan breakthroughs providing relief to the Dreamers and also repairing a broken immigration system,” Graham said in a statement last week.
Immigrant advocates say they want to see Dreamers, TPS recipients and undocumented farmworkers get legal status at the same time. Advocates are eyeing a pair of bills passed by House Democrats in 2019 — the American Dream and Promise Act and the Farm Workforce Modernization Act. They want to see them passed by mid-March, an ambitious goal as the Senate faces Trump’s impeachment again and still needs to pass a Covid relief bill, Biden’s top priority.
Meanwhile, some civil rights groups and advocates, such as Thomas Saenz, president and general counsel of Mexican American Legal Defense and Educational Fund, are hoping Congress will move without a push from the courts. Saenz, whose organization has defended DACA recipients, said he wants to see Hanen permit further discovery and briefing in the case, since the U.S. government’s position in the case has changed now that Biden is in office.
But if that doesn’t happen, Saenz is cautiously optimistic Congress can pass immigration reform. However, like other advocates, he recognizes the major challenge of doing so in a 50-50 Senate with the filibuster still in place.
“It has always been true that relief for this particular group of immigrants has strong voter support,” Saenz said. Therefore, he said, it should be relatively easy to get bipartisan support in the Senate to get relief for this population. Data and polls show broad support for offering legal status to immigrants brought to the U.S. illegally as children, he said.
“But it’s certainly true that many leaders of the Republican Party have aligned themselves quite clearly with Donald Trump,” Saenz said. “So, that’s the question: Can Republican senators who have aligned themselves with Trump still find a way to support legislation?”