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DACA Was 'Saved' Last Week. Now, Is a Texas Judge Going to Kill It?

After a year of battle in the courts, young immigrants fear that their protection from deportation could soon end.
People protesting the cancelation of the Deferred Action for Childhood Arrivals rally on the steps to the Capitol Building on December 6th, 2017.

People protesting the cancelation of the Deferred Action for Childhood Arrivals rally on the steps to the Capitol Building on December 6th, 2017.

After almost a year of federal courts hamstringing the Trump administration's efforts to rescind an Obama-era program that protects young immigrants from deportation, the Deferred Action for Childhood Arrivals program might finally meet its end in a Texas courtroom on Wednesday.

While federal judges in New York and California have issued injunctions preventing the Trump team from axing the program—and a judge in Washington, D.C., ordered a full renewal of the program just last week—DACA remains in a tenuous balance as seven states, led by Texas, argue that the program is illegal in a United States district court in Houston on Wednesday.

Presiding over the courtroom is Judge Andrew Hanen. Given Hanen's history (in 2015 he ruled against a DACA expansion), legal experts tell Pacific Standard they expect Hanen to move against DACA. Now, the only question is how long it will take him to issue a preliminary injunction to halt the program.

According to Shoba Sivaprasad Wadhia, a Pennsylvania State University law professor, an injunction from Hanen suspending the program could lead the country into bizarre legal territory: After all, the injunctions from three other courts (including the D.C. judge's recent order to reinstate DACA) will all still exist if Hanen moves to suspend the program. If Hanen offers his injunction in the near future, there could be multiple "competing" injunctions in the country.

"I don't know if we've ever really seen this sort of gymnastics between the courts around injunctions in the immigration topic, at least not in the 20 years I've been in the immigration space," Wadhia says. "It's hard to predict [what will happen]. There's lots of whats and ifs."

Created as an executive policy by the Obama administration in 2012, DACA invited young immigrants who were brought into the country as children to apply for the program and receive a renewable two-year guarantee against deportation, as well a work permit. The administration argued that the executive branch's "prosecutorial discretion" empowers the president to determine which deportations to prioritize and de-prioritize. Over 700,000 young immigrants became part of the program.

However, since September of last year, when Attorney General Jeff Sessions declared that the Trump administration would end DACA, those same 700,000 people have lived in a state of constant anxiety.

"It's been a hard year and half, a year of constant struggle, a year of having to constantly to look over our shoulders," says Daniel Candelaria Olvera, a DACA recipient. As the Houston-based advocacy organizer for United We Dream (a youth-led immigrant rights group), Candelaria told Pacific Standard in advance of Wednesday's hearing that he and other young immigrants planned to attend so that Hanen and the rest of the courtroom could see them.

"We're going to put a face to the issue," Candelaria says. "Because this is not about statistics, this not about numbers. ... This is about real people. Human lives are at stake."

While the courts in New York, California, and D.C. have all ruled favorably for the DACA program, those judges only considered the question of whether or not the Trump administration acted within the law when it moved to repeal DACA. Now, Hanen will hear arguments about the program's constitutionality. The seven state attorneys general will make the same argument that Sessions made when he announced the program's repeal: that DACA is illegal, and that the program is an example of executive overreach.

While many expect Hanen to rule against DACA, Wadhia notes that the program has maintained substantial legal legitimacy over the years. "Importantly, not a single court, under the prior administration or the current administration, has found DACA to be unconstitutional," Wadhia says. "It has never been struck down or concluded by a judge to be unlawful. ... And for good reasons: because DACA itself is entrenched in a number of legal authorities." In August of last year, over 100 law professors signed a public letter to Trump—co-authored by Wadhia—declaring that the executive branch has clear legal authority to implement DACA.

As Hanen's court convened on a balmy Houston morning, Candelaria issued a message of resilience: "We are advising our communities to remain strong, because this is our home," he says. "We have been here for years, our families have been here for years."

Candelaria encourages all DACA recipients who are eligible to renew their applications to do so immediately. He explains that, even if Hanen offers a negative injunction, it will likely be a matter of weeks before the injunction takes definitive effect.

"Whatever he decides, this is our home, and we're going to fight for it," Candelaria says.

If Hanen does indeed offer an injunction, it could come as early as Wednesday evening. However, legal observers expect that it will take more than just one day for any decision to come out of the Texas court.