Supporters of the immigration program to shield immigrants who came to the U.S. illegally as children from deportation suffered a setback Thursday after a ruling by a Brownsville federal judge that puts more pressure on President Donald Trump to decide the program’s future.
In July, Texas Attorney General Ken Paxton led a 10-state coalition in a letter to the U.S. Department of Justice asking the federal government to rescind Deferred Action for Childhood Arrivals by Sept. 5 or face a lawsuit.
The program, commonly referred to as DACA, was created by a 2012 executive order by President Barack Obama. It provides protection from deportation and work permits for two years to immigrants who came to the country illegally as children. An estimated 800,000 people have received its benefits since its inception.
On Thursday, U.S. District Judge Andrew Hanen granted Texas’ request to delay any further proceedings in his court—where Paxton pledged to challenge the program—until after the coalition’s deadline for the federal government to act.
Hanen’s decision places further pressure on Trump to make a call on the controversial immigration program. During the presidential campaign, Trump pledged to do away with it as part of his tough-on-immigration platform but he has since equivocated on the issue, saying recipients of the program should “rest easy.”
Advocates of strict immigration enforcement say the issue is the one “soft spot” in Trump’s immigration portfolio and hailed Paxton’s letter as a way to force the president to follow through on a campaign promise.
Supporters of the program had looked to relieve the pressure on Trump by moving to dismiss the case in Hanen’s court, which has to do with an expansion of the original program. That expansion—known as Deferred Action for Parents of Americans or DAPA—was blocked by Hanen. It was subsequently appealed to the U.S. Supreme Court, which could not break a deadlock over the issue last year and allowed Hanen’s ruling to stand.
Trump rescinded the program in June, but the legal battle over it remained live in Hanen’s court.
Days after Paxton’s letter to the federal government, lawyers for immigrants who would have benefited from DAPA filed a motion to dismiss the case, arguing that the issue was moot because the Trump administration had done away with the program.
Dismissing the case would make it more difficult for Paxton to challenge the original DACA program because rather than tacking the complaint onto an existing case, it would require him to file a new case and potentially land in front of a judge who was less favorable to the state than Hanen.
But Hanen’s decision did away with any hope of that and put the decision squarely in Trump’s hands.
Is Decision Significant?
The program’s supporters downplayed the significance of Hanen’s decision.
“It’s fair to say it’s not good news, but because it’s so short, I’m reluctant to read much into it,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund, which represents some of the defendants in the case.
Hanen’s order was three sentences and did not explain his reasoning. Paxton did not respond to a request for comment.
Saenz said he was not expecting a decision on whether the case would be dismissed until early September anyway, which meant the fate of the DACA program would have remained in the Trump administration’s hands. Hanen’s order only solidified that.
“I think they were expecting to make a decision anyway,” Saenz said. “I think they don’t know what decision to make yet because there are a lot of different points of views, and I don’t have the impression they’ve resolved those.”
Unfortunately for supporters of the program, Saenz said, its fate remains in the hands of a president who has been unclear about its prospects. But Saenz said Trump’s knack for exerting the power of the executive branch is—perhaps unexpectedly—a sign of hope for the program’s supporters.
“Effectively it’s a statement of his own impotence if he withdraws it,” Saenz said. “That’s what I’m counting on because that’s not something this president has generally been known for. ... He’d be saying ‘I am impotent with respect to protecting a group that I think are worthy of protection.’ ”
Currently, most undocumented students are protected from deportation under Deferred Action for Childhood Arrivals, a policy enacted by the Obama administration. But with immigration arrests up, many are unsure about their future.
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