Texas Targets DACA

DACA recipient Liam Garcia (Photo by Jana Birchum)

Following last year's ICE raids and the passage of Senate Bill 4, Liam Garcia considered moving away from Texas. The 31-year-old Austinite – brought to this country from Mexico by his parents when he was 2 years old – sees protection from deportation through the Deferred Action for Child­hood Arrivals program. Since 2012, DACA has granted two-year safeguards to undocumented residents, including 120,000 Texans who came to the U.S. with their parents, so that they can work and go to school. Since the Trump administration decided to end the program – a move now partially blocked by a federal judge – Garcia's future has been on pause.

When he learned in May that Texas Attor­ney General Ken Paxton filed suit to eliminate the program entirely, it felt like a final straw. Garcia, who works in digital marketing, is now considering a move to Wash­ing­ton state or the East Coast. "I believe my skill set can be better appreciated elsewhere," he said. "This isn't a friendly place for immigrants anymore."

Paxton filed the lawsuit on May 1, making good on a promise to sue if the program had not yet ended. The filing was expected closer to June, but Paxton expedited litigation after U.S. District Judge John Bates of the District of Columbia issued the third and perhaps strongest rebuke of the Trump administration's efforts, calling them "virtually unexplained" and thus "unlawful." While courts in California and New York have ordered the administration to renew DACA work permits, Bates' ruling is the most expansive, allowing both renewals and new applicants. But the judge put a 90-day hold on the order (until July 23) to give the Depart­ment of Homeland Security an oppor­tunity to whip up some actual evidence to show how DACA is somehow illegal.

Paxton's suit claims DACA violates the limitations of the executive branch's authority, and slams judges for maintaining an "unconstitutional" law. While the suit is aggressive in nature, UT Law Immigration Clinic Director Denise Gilman believes it doesn't have much merit: "In the end I don't think it will be successful for a range of reasons. But in the meantime, it's part of an ongoing pattern by the state of Texas that sends a clear anti-immigrant message."

Courts and immigrant rights groups call DACA a limited exercise of prosecutorial discretion, well within the federal government's powers. Gilman also points out the difficulty Texas will have in trying to show any harm, considering the program has been around for six years and has produced economic benefits. According to the Center for American Progress, the state would lose 108,000 workers and $6.3 billion in annual GDP if the program vanishes.

 Some point to Texas' success in halting the Obama administration's 2014 Deferred Action for Parents of Ameri­cans and Law­ful Permanent Residents program, though its lawfulness was mostly unresolved, as the suit was ultimately dismissed without the court ruling on its merits. Paxton is clearly hoping DACA gets similarly stunted. He's filed with U.S. District Judge Andrew Han­en, in Brownsville; Hanen has criticized DACA and eagerly sided with the state on the DAPA suit. Texas also has the conservative 5th Circuit Court of Appeals on its side. Should the state succeed, it poses a legal conundrum that could push the issue to the U.S. Supreme Court. "You could potentially have injunction orders from different courts going in opposite directions," said Gilman, creating "a situation that would pressure the Supreme Court to weigh in more quickly."

Ken Paxton (Photo by John Anderson)

The lawsuit is also peculiar in that it's coming from Trump's right, and pits the federal administration against a state supportive of anti-immigrant zealotry. It's unclear whether the Trump administration will even legitimately defend itself, since they adamantly agree with Texas. That's why the Mexican American Legal Defense and Educational Fund, on behalf of 22 young DACA recipients, filed as intervenors in the case on May 8, an effort to include actual immigrant voices in the lawsuit. "Texas and the Trump administration share the same erroneous and uninformed view of the law with respect to DACA," said MALDEF Presi­dent Thomas Saenz. "Such a collusive lawsuit cannot go forward without intervenors who will actually and vigorously defend the critically important initiative."

Two peas in a bigoted pod. It almost seems as though the Trump team and Texas are working hand-in-hand. After all, the federal administration used Texas' previous threat to sue over DACA last summer as a reason to end the program. Allegations of collusion aren't so far-fetched: Illinois Sen. Dick Durbin has requested documents of communication between U.S. Attorney General Jeff Ses­sions and Texas officials, saying the lawsuit raises "serious unanswered questions about whether the Trump Administration is conspiring with Texas and other states to undermine DACA." Durbin pointed to an interview in which Sessions applauded states for "holding the federal government to account," an unprecedented instance of "welcoming a threat to sue the President," in Durbin's eyes. The suit has also generated pushback from unlikely sources such as the conservative Texas Association of Bus­i­ness, who would rather see a congressional solution, and U.S. Sen. John Cornyn, who called Paxton's effort misguided.

While congressional efforts to come up with a permanent plan have stalled, DACA recipients continue to wait. Robert Painter of local immigrant services group American Gateways says the unpredictability has led his nonprofit to ask Travis County clients to sign memos acknowledging that the program's future can't be guaranteed. "There's been a lot of managing expectations," he said. "And the ambiguity means far more questions than before."

For Jose Cruz, that constant threat makes it hard to sleep at night. "I'm emotionally drained asking everyday, 'What's going to happen next?'" he says. "I'm scared thinking I might have to go back to Mexico." Cruz, an Austin resident for two decades, suffered years of professional setbacks because he didn't have the needed documents. After entering the DACA program five years ago, Cruz has been able to start his own business, running three food trailers in East Austin. "DACA has given me stability; it helped me get ahead," he said. "Now, it could all be taken away."