The Immigration Fight That May Soon Land in the Supreme Court

A DACA ruling from a federal district judge in Texas could conflict with previous orders that have allowed the program to proceed, and, as a result, bring the issue to the Court.

Six months. That’s how long the Trump administration gave Congress to find a legislative fix or replacement for the Obama-era program aimed at shielding young undocumented immigrants from deportation when Attorney General Jeff Sessions announced a phaseout of the program in September 2017.

But after many attempts and failures in Congress to pass legislation, a court ruling expected any day from a federal district judge in Brownsville, Texas, could throw the continuation of the Deferred Action for Childhood Arrivals program into chaos, possibly leaving it in effect in some parts of the country and terminated in others, said David Leopold, an immigration attorney in Cleveland and a former president of the American Immigration Lawyers Association.

“It becomes uncharted waters,” he added.

The judge in Brownsville, a conservative George W. Bush appointee named Andrew Hanen, could order the administration to stop accepting DACA renewals, putting him at odds with three other federal judges in California, New York, and Washington, D.C., who have forced the government to continue processing renewal applications.

If Hanen so rules—and he was responsible in 2015 for blocking the implementation of Obama-era protections for undocumented parents—the Trump administration could be in a position of having to decide which order to follow: continue processing renewals, or stop doing it altogether. In such a scenario, the Supreme Court will likely be asked to step in, according to Leopold and other legal experts.

The Court could do a number of things. It could grant a stay, which would temporarily stop further legal proceedings or the enforcement of orders. If a stay isn’t granted, confusion could reign, with DACA continued in some states and not in others. In any case, at least five justices would have to agree on next steps, and with a split Court a consensus would be difficult to achieve.

In the meantime, appeals are also pending in the Second, Fourth, and Ninth Circuits, though the only circuit court expected to issue a ruling soon is the Ninth Circuit. “Technically, if you have a national injunction and the Ninth Circuit upholds the national injunction, then that would technically [apply to] the entire country. It would be a higher court, but Hanen is his own judge. He issues a contrary order, the question is: What does USCIS do?” Leopold said, referring to the agency tasked with processing applications.

The federal-court rulings blocking Donald Trump’s phaseout have until now provided some reprieve for the program’s more than 700,000 beneficiaries, who were brought into the country before the age of 16 and have lived in the United States since 2007. The program, which Barack Obama created in 2012, provides recipients protection from deportation for two years, which can be renewed, and allows them to work legally in the country.

Trump’s decision to phase out the program, followed by orders from multiple judges continuing the renewal process—and quite possibly a forthcoming order ending it—has been an “emotional roller coaster,” said Sanaa Abrar, the advocacy director for United We Dream, an immigrant-advocacy group.

“It’s been devastating. People have been trying to figure out, ‘What protections do I have that I can actually still hold on to?’” Abrar said. “And in this moment, when it comes to DACA, the DACA renewal process is that thing that people can hold on to.”

Since January, more than 158,000 recipients have applied for their two-year renewals, according to U.S. Citizenship and Immigration Services. Despite an urgency to renew, thousands of DACA recipients have not submitted renewal applications. An analysis by the Center for American Progress found that only a fraction of recipients whose protections expire this November and December have applied for renewal. “For reasons that are unclear, the rate of renewal has dropped significantly in the past few months. CAP estimates that the renewal rate is 38 percent for those with November expirations and only 22 percent for individuals with December expirations,” wrote Nicole Prchal Svajlenka, a senior policy analyst with the Center for American Progress. In 2019, more than 400,000 DACA recipients are set to lose their protections.

The conservative assault on DACA began in earnest six months after Trump took office when Texas Attorney General Ken Paxton, one of the country’s leading DACA critics, threatened to file a lawsuit challenging the program. He backed off when the Trump administration announced the program’s six-month phaseout in September 2017. But when those six months came and went, followed by further dithering in Congress, Paxton filed suit before Hanen in May on behalf of Texas and six other states—Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia—arguing that Obama had exceeded his executive powers in creating DACA. The lawsuit contends that the president is not empowered to grant legal temporary residence and work permits for undocumented immigrants.

Paxton’s suit came after three others challenging Trump’s decision to end the program on narrower, procedural grounds.

In January, four months after Sessions’s announcement, Judge William Alsup of the Northern District of California ordered the administration to partially resurrect DACA and accept renewal applications.

A month later, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn issued a similar ruling. Alsup and Garaufis issued nationwide injunctions that halted the Trump phaseout while the courts considered the question of whether DACA had been ended properly. (The Trump administration appealed Alsup’s ruling and made a rare request to the Supreme Court to hear the appeal, but the Court turned down the request.)

This month, Judge John D. Bates in Washington, D.C., also ruled that the administration needs to continue processing applications. Bates, like Alsup and Garaufis, found that the government’s reasoning for ending the program was not sufficient.

Immigrant-advocacy groups, such as United We Dream, are encouraging recipients to apply for renewal despite the confusion around current litigation.

“For us, the Hanen ruling is a big red flag that time is almost up for people to send their renewals, and at the point of a Hanen decision, people need to be sending their renewals out the door if they haven’t already applied,” Abrar said.

It’s not clear what will happen or when—leaving the fate of DACA more uncertain than ever and its recipients scrambling to keep their protections for as long a time as they can.