The fate of tens of thousands of immigrants legally living and working in Texas could hinge on arguments presented to a panel of federal judges Thursday in New Orleans.
The hearing before the Fifth Circuit of Appeals was the state of Texas’ latest attempt to end the popular and controversial Deferred Action for Childhood Arrivals program, commonly called DACA, that began in 2012. The program grants some young, undocumented immigrants a reprieve from deportation and a two-year work permit.
The program has been in Texas’ crosshairs for several years after it was originally implemented by the Obama administration under an executive order. President Biden sought to solidify the program by issuing a federal rule in 2022, but Texas Attorney General Ken Paxton argued that, too, was unlawful.
A key focus Thursday for attorneys for the Biden administration and the Mexican American Legal Defense and Educational Fund, or MALDEF, was whether Texas had standing to bring the case in the first place. MALDEF represents DACA recipients and has argued to keep the program since its original implementation.
Texas has argued it’s suffered irreparable harm under DACA because of the costs incurred to educate and provide medical care for undocumented immigrants in the program. Nina Perales, the vice president of litigation for MALDEF, said Texas hasn’t proven that burden and could be cherry picking its data.
“Texas continues to rely on education spending on children who arrived in the United States seven years or more too late to be DACA recipients. That's what's in the record,” she said. “And then because of the passage of time, it's not possible for Texas to identify K through [grade] 12 spending on DACA recipients because DACA recipients are now age 18 and older.”
She added that, on health care, Texas is also using a broad data set.
“Texas points to health care spending on the entire undocumented immigrant population, as Texas estimates it, not DACA recipients,” she said, adding the state has not provided data on whether law enforcement spending has increased due to people in the program.
Brian M. Boynton, the deputy assistant attorney general under the Biden administration, made the same argument and said the circuit court’s previous assertion that Texas had standing was wrong based on subsequent rulings from the U.S. Supreme Court, which includes a 2023 decision that states do not have the authority to challenge the federal government’s immigration-enforcement priorities.
Judge Jerry Smith, one of the three judges on the panel, said instead the U.S. Supreme Court wasn’t clear on that.
“The Supreme Court keeps telling us, in accordance with our rule of orderliness, we don't budge on our past cases unless there's been an unequivocal statement,” he said. “I just don't see how you're getting very far with that argument. Obviously, you can spend time on it if you want to, but the Supreme Court has not addressed this particular situation in standing.”
Attorney Joseph N. Mazzara, special counsel to the Texas Attorney General, said that if Texas and the other states suing to end the program are successful, DACA recipients would leave the states and thus relieve the states of their-so-called burden.
“[There is evidence] of the recipients, for example, themselves saying that we are here, and we will leave. We are here. We're incurring these costs, and we will leave if DACA is rescinded,” he said.
Judge Stephen Higginson seemed skeptical of that argument.
“[The Department of Homeland Security] said the opposite, said there's scant evidence that that train of logic would work. In other words, the logic is people that are lifelong residents of Texas, if they lose the program, they're going to go back to countries they never lived in. Is that the logic?” he said.
Tom Jawetz, a senior fellow for immigration policy at American Progress and the deputy general counsel of the U.S. Department of Homeland Security from 2021 to 2022, said that Texas is all over the place when it comes to what they want to see happen to current DACA recipients.
“Texas wants to have its cake and eat, too, right? They don't want to look like the bad guys, saying that recipient should be deported, but they don't seem to be satisfied with just having DACA recipients leave the state and go somewhere else,” he said.
Texas ranks second behind California in the number of DACA recipients with about 89,000 as of June 30, according to federal government statistics. There are more than a half-million nationwide.
MALDEF’s Perales said after the hearing that the judges appeared to weigh the arguments carefully and even allowed attorneys to go past their allotted time. She also reiterated that she doesn’t think upholding one part of the DACA while severing other parts of the policy, as has been suggested, will work in practice.
“Our argument is that you really can't divide DACA from things like employment authorization because DACA itself is just deferred action. Employment authorization flows from a different set of regulations,” she said.
Though litigation continues, renewals for DACA are still being filed and processed, though there is a halt on new applications. Both sides agreed that current policy should continue as the case continues.
It’s unclear when the three-judge panel will rule but the case’s ultimate resolution will likely be decided by the U.S. Supreme Court.
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