Texas Attorney General Threatens to Amend DAPA Lawsuit to Include DACA

 

Introduction

On June 29, 2017, Texas Attorney General Ken Paxton sent a letter to United States Attorney General Jeff Sessions regarding the Deferred Action for Childhood Arrivals (DACA) program. You may read the full letter here [PDF version]. In the letter, Attorney General Paxton, joined by the governors and attorney generals of 10 other states, threatened to sue the Federal government if it does not announce steps to rescind the DACA program. In this article, we will examine Attorney General Paxton's letter and what it may mean going forward.

DAPA memo

Issues Presented in Letter and Overview

On June 15, 2017, the Department of Homeland Security (DHS) rescinded the November 20, 2014 memorandum creating the Deferred Action for Parents of Americans (DAPA) and the DACA-plus programs [see article]. That decision was prompted in part by Texas securing injunctions in Federal court against the implementation of DAPA and DACA-plus [see opinion blog] and then having the injunction issued by the United States Court of Appeals for the Fifth Circuit left in place by an equally-divided Supreme Court [see opinion blog].

However, in rescinding the November 20, 2014 memorandum which implemented DAPA and DACA-plus, the DHS explicitly left in place the June 15, 2012 memorandum implementing DACA. In his letter, Attorney General Paxton took the position that the DACA memorandum is unlawful for the same reasons that “DAPA and [DACA-plus's] unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful…” Referring to a DHS FAQ last updated on April 25, 2017, Attorney General Paxton noted that the DHS's position is that individuals on DACA “are considered to be lawfully present” [PDF version].

Accordingly, Attorney General Paxton made the following requests of DHS:

  1. That it rescind the June 15, 2012 DACA memorandum; and
  2. That it not issue or renew any DACA or [DACA-plus] permits in the future.

Attorney General Paxton made clear that he was not requesting that the DHS 'immediately rescind DACA or [DACA-plus] permits that have already been issued.” Furthermore, he stated that the request did not require that the DHS alter its new enforcement priorities [see article] or remove any alien.

Attorney General Paxton pledged that if the Executive Branch rescinds the June 15, 2012 DACA memorandum and promises not to renew or issue any new DACA or DACA-plus permits in the future, then Texas and the other plaintiffs will voluntarily dismiss its still pending lawsuit against the DAPA memorandum (note that the lawsuit is still pending even though DHS withdrew the DAPA memorandum). However, Attorney General Paxton stated that if the DHS does not agree to Texas's requests by September 5, 2017, Texas and the other plaintiffs will amend the complaint against the DAPA memorandum to challenge both the DACA program and the validity of the remaining previously issued DACA-plus permits.

The letter was signed by the following individuals in addition to Attorney General Paxton:

  • Steve Marshall, Attorney General of Alabama
  • Leslie Rutledge, Attorney General of Arkansas
  • Lawrence G. Wasden, Attorney General of Idaho
  • C.L. “Butch” Otter, Governor of Idaho
  • Derek Schmidt, Attorney General of Kansas
  • Jeff Landry, Attorney General of Louisiana
  • Doug Peterson, Attorney General of Nebraska
  • Alan Wilson, Attorney General of South Carolina
  • Herbert Slatery III, Attorney General and Reporter of Tennessee
  • Patrick Morrisey, Attorney General of West Virginia

Analysis

After having effectively prevailed in the lawsuit against DAPA, Attorney General Ken Paxton of Texas, along with several of the States that had joined Texas in the DAPA lawsuit, has now set his sights on DACA. Although the DACA program is significantly smaller in scope than the erstwhile DAPA program, we noted in our post on the recission of the DAPA memorandum that DACA may be susceptible to the same legal challenges that DAPA was [see section]. Although we do not have the details of what claims and theories a Texas lawsuit against DACA would entail, Attorney General Paxton keyed in on DACA's conferral of lawful presence absent Congressional authorization, an argument he made successfully before the Fifth Circuit regarding DAPA [see opinion blog].

The Texas letter puts substantial pressure on the Trump Administration to respond to the challenge to live up to President Donald Trump's campaign promises to rescind both DACA and DAPA [see blog]. While DAPA is now no more, President Trump has thus far wavered on ending DACA [see blog]. With the threat of a legal challenge looming, the Trump Administration is now forced to decide whether it will end the DACA program, which would surely lead to an effort in Congress to implement a similar program through statute, or whether it will fight to maintain the program in court. Due to conflicting statements from President Trump and others in the administration, it is impossible to know for sure what course of action they will take.

We will update the site with more information once it becomes available. For the time being, it is important to note that DACA remains in effect as of June 29, 2017, and, even if it were to be rescinded through DHS action or through the judicial process, that in and of itself does not mean that existing DACA permits would be terminated immediately. DACA recipients or those seeking DACA protection should always work closely with an experienced immigration attorney for up-to-date and case-specific guidance.