Blue States Ask Federal Judge to Allow DACA to Continue
by Cameron Langford, CourtHouseNews, July 23, 2018
The demise of Deferred Action for Childhood Arrivals would be felt nationwide, as states stand to lose hundreds of millions in annual tax revenue if Texas prevails in its quest to end the program, a coalition of blue states claims in an amicus brief.
Led by New York Attorney General Barbara Underwood and California Attorney General Xavier Becerra, a 19-state coalition filed an amicus brief on Saturday urging the federal judge presiding over a Texas-led lawsuit seeking to end DACA not to suspend the program with a preliminary injunction.
DACA protects from deportation, for renewable two-year terms, an estimated 750,000 immigrants brought to the United States as children, and lets them get work permits and driver’s licenses.
The Democrat-controlled states say that DACA recipients, who must have continuously lived in the United States since June 2007 to qualify, are too intertwined in their communities to be deported now and the hit to the national economy would be substantial.
“Without DACA, GDP will be $460.3 billion less over the next decade, with Social Security and Medicare tax receipts dropping $24.6 billion,” the brief states.
Even if DACA recipients lost the “lawful presence” status conferred by the program, the blue states say, they are unlikely to be deported because they pose little threat to the nation’s security and they have deep family ties in the United States.
Many DACA enrollees have no recollection of their home countries that they left with their parents as toddlers.
The blue states say DACA is an exercise of prosecutorial discretion that U.S. presidents have used as immigration policy for decades, most notably a “family fairness” policy that President Ronald Reagan implemented in the late 1980s that gave 1.5 million relatives of people newly eligible to become legal permanent residents a reprieve from deportation and made them eligible for work permits.
The Trump administration announced in late summer 2017 it was winding down DACA after Attorney General Jeff Sessions said that the program, started by President Barack Obama in 2012, is illegal and cannot be defended in court.
Sessions based that conclusion on federal courts’ treatment of Deferred Action for Parents of Americans and Lawful Permanent Residents, a sister program to DACA that Obama unveiled in November 2014 that would have shielded parents of U.S. citizens and legal residents from deportation.
U.S. District Judge Andrew Hanen and the 5th Circuit blocked DAPA from taking effect, siding with a Texas-led 26-state coalition that challenged it. The U.S. Supreme Court upheld the injunction by default when it deadlocked 4-4 in June 2014.
Hanen and the 5th Circuit agreed with Texas that the Immigration and Nationality Act does not grant the secretary of the Department of Homeland Security, the agency in charge of immigration, authority to give lawful presence status to the estimated 4.3 million people who would have qualified for DAPA.
But New York and California say in their friend-of-the-court brief that Sessions and Texas are wrong in their assumption that courts will ultimately find DACA illegal because of the precedent set in the DAPA litigation.
The Immigration and Nationality Act gave most parents who qualified for DAPA a process to legalize their immigration status through their children’s status.
“Congress has created no comparable avenue for the class of persons eligible for DACA to obtain lawful status,” the brief states.
In addition, the blue states say, DACA covers far fewer people than DAPA and Reagan’s family fairness policy.
“Both DAPA and the family fairness policy were available to about 40 percent of the undocumented population; only about ten percent of the undocumented population (1.2 million persons) meet DACA’s criteria,” the filing states.
Furthermore, the Democrat-led states claim that unlike DAPA, DACA is tailored to people who are not likely to have criminal records, and who entered the country illegally through no fault of their own.
Besides that, the blue states say, Texas cannot prove it will suffer irreparable harm, a requirement for winning a preliminary injunction, if DACA is not immediately blocked because it waited until May 1 of this year, when DACA had been in effect for nearly six years, to challenge it with a lawsuit.
“During that time, nearly 800,000 grantees have sought and received deferred action and benefits such as work authorization. Those individuals have ‘come out of the shadows’ and taken on important roles in communities across the country, to the benefit of their families, employers, the institutions with which they are associated, and the States in which they reside,” the brief states.
Judge Hanen is also presiding over Texas’ lawsuit against DACA. The blue states asked Hanen in their brief not to issue any injunctions out of respect for two nationwide injunctions that have blocked the Trump administration from phasing out DACA, and forced it to continue accepting renewal applications.
New York’s and California’s attorneys general are joined in the brief by their counterparts from Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington and the District of Columbia.
U.S. District Judge John Bates in the District of Columbia on April 24 opened the door for those foreclosed from applying for DACA by the Trump administration’s decision to end the program, when he ordered the government to resume taking new DACA applications.
He stayed his order for 90 days, however, to give the Trump administration time to explain why it believes DACA is illegal.
In a June 22 memo defending the decision to end DACA, DHS Secretary Kirstjen Nielsen said she believes the program is illegal because any policy that gives large groups of undocumented immigrants the means to stay in the United States should be passed by Congress.
She echoed Texas’ argument in its lawsuit that the DAPA litigation paved the way for DACA to be struck down in court.
“Any arguable distinctions between the DAPA and DACA policies are not sufficiently material to convince me that the DACA policy is lawful,” she wrote in the three-page memo.
In her memo, Nielsen also states that keeping DACA in place will send a message that is inconsistent with the Trump administration’s efforts to clamp down on illegal immigration.
“Considering the fact that tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years and then have been released into the country owing to loopholes in our laws … It is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens,” she wrote.
The Trump administration cites Nielsen’s memo in a July 11 motion asking Bates to revise his order and to dismiss claims that the rescission of DACA was unconstitutional.
A hearing on the Texas case is set for August 8.
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