The state of Texas will be back in federal court Thursday in its latest effort to dismantle legal protections for tens of thousands of undocumented immigrants who call Texas home.
At stake is the future of the Deferred Action for Childhood Arrivals, or DACA, program, which allows qualified applicants who were brought into the U.S. as children before they were 16 to receive a renewable, two-year work permit and a reprieve from deportation.
By the end of 2022, there were more than 95,000 DACA recipients in Texas, the second-highest total behind California's 165,000. There are more than 580,000 in the country, according to statistics from the United States Citizenship and Immigration Services.
Thursday's hearing is the latest in a yearslong effort to end the program on the claim from Texas that the policy, which began in 2012 under former President Obama, was unlawfully put into place. The initial fight led to the United States Supreme Court ruling in 2020 that the Trump administration did not end the program according to federal procedure. But that decision didn't address the legality of the program.
Federal District Judge Andrew Hanen, who will hear Thursday's arguments, had previously ruled that the Obama administration did not implement DACA according to federal law. The Fifth Circuit Court of Appeals agreed, but the program has been kept in place for current recipients although new applications have been placed on hold pending a final determination.
The Biden administration finalized a rule last year that would fortify DACA's protections for its beneficiaries. The appeals court sent the case back to Hanen to determine the legality of Biden's rule, but the office of Texas Attorney General Ken Paxton has continued its effort to end the program as that decision plays out. Paxton's office has since asked Hanen to grant a summary judgement and declare the rule and the program unlawful.
During a conference call with reporters Tuesday, Nina Perales, the vice president of litigation for the Mexican American Legal Defense and Educational Fund, or MALDEF, said the focus of Thursday's hearing revolves around two main issues. MALDEF is arguing the case on behalf of DACA recipients.
"We will be arguing to Judge Hanen that neither Texas nor any of the other states challenging DACA have standing to sue, meaning they have not identified any injury that comes to them as a result of DACA recipients living in their states," she said. "That means that they can’t come to court and bring a case because you have to have standing in order to sue."
The other argument is that DACA is lawful according to current law as federal prosecutors have used what's known as prosecutorial discretion for years. Prosecutorial discretion is a practice used by prosecutors, in this case federal prosecutors, to determine which cases should be prioritized and pursued.
"DACA is consistent with the many policies of the U.S. government in the past under different presidents," Perales said. "And over time, DACA simply allows the federal government to decide with respect to a particular individual that the government is going to exercise prosecutorial discretion. The government is going to choose to defer action on that individual. That’s why it’s called deferred action."
There is also another important note to make on Thursday's proceedings. Paxton was suspended from his official duties after the Texas House voted overwhelmingly Saturday to impeach him on findings that he abused his office and committed bribery – among other alleged crimes – to benefit a donor.
On Wednesday afternoon Gov. Greg Abbott appointed former Texas Secretary of State John Scott as interim attorney general. But it's unclear what direct role, if any, he'll play in ongoing litigation. The Texas Attorney General's office did not respond to a request for comment on how the impeachment will affect the state's case Thursday.
During the press call, MALDEF General Counsel Thomas Saenz said he couldn't predict what Paxton's impeachment and suspension will mean for the state's case. But he didn't predict a significant change from the position Texas has taken.
"Much of Texas leadership, from the governor on down, has rhetorically engaged in such anti-immigrant rhetoric of late that it seems unlikely that there would be a change in posture of any significance in this case, despite the historic impeachment," Saenz said.
It's unclear how quickly Hanen will rule, but Perales said she didn't anticipate an immediate decision after Thursday's arguments.
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