1 – This is a summary of the DACA order today that came down from Judge Hanen in the US District Court for the Southern District of Texas. Judge Hanen was the same judge who ruled against the DAPA program in 2016.

2 – It’s pretty clear that the judge largely bought the plaintiffs overall arguments regarding the legality of DACA. And he suggested they would likely win at trial in his courtroom. But they didn’t meet the test for a preliminary injunction.

3- This is critical because it now means DACA will likely remain in place until the Supreme Court ultimately decides the issue. That could be another year or more away. Here’s the link to the case – https://www.scribd.com/document/387497934/DACA-PI-decision

4 – The plaintiffs in the case are TX, AL, AR, LA, NE, SC, WV, KS and the governors of MS and ME. They are arguing DACA is illegal because its creation and continued existence violates the Administrative Procedure Act (APA). Also argue that DACA violates the Take Care Clause of the Constitution.

5 – The Defendants are the US, the DHS Secretary, the Commissioner of CBP, the Deputy Director of ICE, the Director of USCIS and the Chief of the Border Patrol. 22 DACA recipients intervened as Defendants as well as the State of NJ (presumably based on expectation the Administration wouldn’t really try too hard).

6 – The Plaintiffs sought a preliminary injunction to stop the govt from issuing or renewing any DACA approvals. Plaintiffs also sought a declaratory judgment that DACA is contrary to the APA, the Take Care Clause which would also require the termination of the DACA program.

7 – The court noted that it previously ruled against expanding DACA with the DAPA program and that the Administration and the Plaintiffs reached an agreement regarding the dismissal of that case.

8 – The court noted it was not ruling on the benefit of the program or about what the Administration should do with respect to individuals who are in the program (such as deporting any of them).

9 – After reviewing the history of the DAPA case, the court noted that the Supreme Court never got to a ruling on the legality of the program because it was deadlocked and that the case was referred back to the district court. But that determination was still not made because the case was dismissed by agreement of the parties.

10 – The court notes that the DAPA plaintiffs understood DACA was to be dismantled as well under the dismissal agreement, but that this was thwarted by two injunctions from district courts in CA and NY. The DC case that would have allowed new DACA applicants prompted this new case.

11 – The Court denied the Defendant-Intervenors motion to dismiss based on the other courts addressing the program. The Court noted that those cases were based on the legality of the WH DACA rescission memo and this case is not. Also, this court was addressing the issue before the others (the 2016 DAPA/DACA expansion case).

12 – The court defends nationwide injunctions (including the ones in effect preserving DACA) noting that limiting an injunction to just a part of the country is almost impossible to administer.

13 – The court also notes it doesn’t need to defer to the other courts because it is not issuing an order that is contrary to the other orders (on page 16, this is the first suggestion by the judge the plaintiffs are in trouble).

14 – The court notes that DACA has problems for the same reason DAPA/expanded DACA did – namely, that there was no compliance with the APA notice-and-comment requirements and that this was affirmed by the 5th Circuit.

15 – The court found in favor of the plaintiffs that there was unquestionably a case or controversy. Also, the court ruled the plaintiffs had standing based on the same reasoning as the DAPA case. The court agreed with TX’s claim that DACA injures Texans because recipients compete for jobs. The court bought this.

16 – The plaintiffs also argued that they have standing because they incur costs for providing DACA recipients with healthcare, education and law enforcement services. The court was satisfied with this argument.

17 – Next the court turned to whether DACA is reviewable under the Administrative Procedure Act. The issue in contention was whether DACA constituted “an agency action … committed to agency discretion by law.” The court held that DACA is reviewable under the APA for the same reason DAPA was.

18 – The court then turned to the main event – the preliminary injunction. 4 factors – 1) substantial likelihood that plaintiffs will prevail on merits; 2) substantial threat of suffering irreparable injury; 3) injury outweighs the harm to the party they seek to enjoin; and 4) granting injunction won’t disserve the public interest.

19 – Factor 1 – likelihood of success on the merits. The court passed on whether DACA violates the Take Care Clause of the Constitution. Why? Because the clause can be read to support or oppose DACA and the court can rule on this issue without considering this issue. And law is really unclear in this area.

20 – Factor 1 (cont.) – the court then turns to the APA claim. The court decided that the Chevron test – that the statute is ambiguous and an agency’s interpretation is reasonable – is met for the same reasons decided in the DAPA case. The INA makes DACA recipients removable and DACA prevents that. Cites to 5th Circuit DAPA decision.

21 – Factor 1 (cont.) – The court held that the US Code describes ways people can get lawful presence and employment authorization and it doesn’t include DACA (or DAPA previously). And it held the advance parole benefit helps DACA recipients unlawfully avoid the 3/10 year bars and seek to adjust status to a green card.

22 – Factor 1 (cont.) – Even if Chevron pt. 1 met, pt. 2 is not. If there is an unsettled question for an agency, is the agency’s answer a permissible construction of the statute? “DACA is ‘manifestly contrary’ to the statutory scheme promulgated by Congress. And DAPA and DACA aren’t so different that it makes a difference. The court also has big problems with the concept of deferred action.

23 – Factor 1 (cont.) The court also held that DACA is not a procedural rule and is not a general policy statement and, thus subject to the APA. Bottom line – the court found plaintiffs made a clear showing they are likely to succeed on the merits at trial.

24 – Factor 2 – likelihood of substantial and immediate injury if the injunction isn’t granted; speculative injuries aren’t enough; the plaintiffs argue they’re paying millions of dollars for uncompensated benefits and law enforcement/educational costs and cost legal residents job opportunities.

25 – Factor 2 (cont.) – The court seemed more open to arguments from the DACA defendants and NJ regarding the net economic benefit of DACA and noted that just because this wasn’t relevant for standing, it might matter for the preliminary injunction. Nevertheless, the court found irreparable injury.

26 – Factor 2 (cont.) – The court then addressed a key issue; whether the plaintiffs waited too long to bring this action. They’ve had since June of 2012. The court noted that while the statute of limitations isn’t up, delay is a factor in deciding if a preliminary injunction is appropriate and plaintiffs failed here.

27 – Factors 3 & 4 – What is the effect on each party of granting or withholding the requested relief? And what are the policy considerations? Here, the court notes the difference between DAPA and DACA. DAPA hadn’t taken effect. DACA has been around for 6 years. Significant hardships to DACA recipients demonstrated.

28 – Factors 3 & 4 (cont.) – Texas’ harms would still be occurring without DACA. The costs won’t change significantly.

29 – Court: “One cannot put the toothpaste back in the tube” and “one cannot unscramble the egg.” With DAPA, no one had gotten a benefit yet. Not true with DACA.

30 Finally, the court noted that while the plaintiffs may ultimately win when the case finishes in the courts, this is an issue “crying out for a legislative solution.”

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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