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Congressional Inaction Leaves DACA Dependents in Dire Straits

Texas, seven other states, and two governors are seeking to block renewals of Deferred Action for Childhood Arrivals (DACA), which now has a six-year history of shielding young U.S. residents brought to the United States as undocumented children, and enabling them to legally work, drive, and, in some states, pay in-state tuition rates for college.

Recent Ruling Buys a Tad More Time for DACA, But No Reassurance

Last month Judge Andrew Hanen heard a motion for a preliminary injunction to bar any new DACA applications, and to shut off renewals of current deferred action permits.
Texas-based District Judge Andrew Hanen has just denied the preliminary injunction request. The ruling buys time for DACA, which Donald Trump opted to axe last September.
Hanen noted that the coalition of states waited more than five years after DACA became effective to challenge it, so an injunction, meant to prevent an immediate harm, is inapt.

Moreover, Hanen determined that the harm to the states that (in terms of having to offer state benefits to DACA recipients) did not outweigh the potential consequences of immediately shutting off a legal lifeline for the many people currently relying on it. Indeed, they would be placed “perhaps at great risk” (Hanen’s words) without it.

Prior Blow to Fragmented Families

A previous injunction from Hanen had kept a 2014 expansion of DACA, including a Deferred Action for Parents of Americans provision, from taking effect. Then, too, Judge Hanen sided with a coalition of states led by Texas. Hanen’s earlier rebuff to migrants went all the way to the Supremes. A divided court allowed Hanen’s injunction to stand, blocking the expansion of DACA.
While Texas et al. didn’t torpedo DACA with their recently requested injunction, Judge Hanen insists the law won’t survive the states’ challenge as a whole, for: “If the nation truly wants to have a DACA program, it is up to Congress to say so.”

These words are hardly a balm to young migrants. Congress has twice failed to pass any sustaining legislation, even though three federal courts have kept DACA afloat and held the Department of Homeland Security responsible for renewing DACA protections.

An Extra Dollop of Anxiety

Hanen took time to issue a separate order allowing for an appeal of this recent legal pause in the assault on DACA, offering the states three weeks to regroup on that before the case marches on.
The Department of Justice, which encompasses the Department of Homeland Security, is a defendant in the case, but did not defend DACA. The state of New Jersey and 22 DACA recipients did, by intervening in the case.

The threat of deportation causes severe anxiety in children with undocumented parents or siblings. Night terrors and symptoms of PTSD are common. Some of the children wind up in protective services—a situation (not to mention expense) which never had to be.

DACA Dissers and Defenders

Here is the list of states and governors who are piling on the torment:

Texas
Alabama
Arkansas (on Twitter: https://twitter.com/AGRutledge)
Louisiana
Nebraska (on Twitter: https://twitter.com/AGDougPeterson)
South Carolina
West Virginia (on Twitter: https://twitter.com/WestVirginiaAG)
Kansas (on Twitter: https://twitter.com/KSAGOffice)
Gov. Phil Bryant of Mississippi
Gov. Paul LePage of Maine

The Mexican American Legal Defense Fund (MALDEF), which represents the 22 defendants with a direct stake in DACA protections, notes that Texas AG Ken Paxton has characterized the states’ challenge to DACA disingenuously—projecting the challenge as though it wouldn’t affect anyone already reliant on the law’s protection.

The case’s eventual outcome with Judge Hanen is predictable, and so is its arrival in the Supreme Court next year. Meanwhile, there is a groundswell of judicial pressure on the government to reinstitute DACA in full. Will Congress manage to sustain DACA as they’ve been asked repeatedly to do? This shouldn’t be such a hard decision.

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Lee Hall holds an LL.M. in environmental law with a focus on climate change, and has taught law as an adjunct at Rutgers–Newark and at Widener–Delaware Law. Lee is an author, public speaker, and creator of the Studio for the Art of Animal Liberation on Patreon.

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