Texas Files New Motion for Preliminary Nationwide Injunction Against DACA

On May 1, 2018, Texas filed a motion in the United States District Court for the Southern District of Texas seeking a preliminary nationwide injunction against the U.S. Government's implementation of the Deferred Action for Childhood Arrivals (DACA) program. Texas was joined in its motion by the States of Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia. You may read the motion here: [PDF version]. The motion will be considered by Judge Andrew Hanen.

In the motion, Texas seeks to enjoin the Government from renewing DACA permits or granting new DACA permits in winding down the program. Texas is not seeking a court order invalidating existing DACA permits.

In order to understand the current litigation and its possible implications, we must start from the beginning of what has been a long legal story. In 2014, Texas led a lawsuit seeking to enjoin implementation of the Deferred Action for Parents of Americans (DAPA) program. Texas won a preliminary nationwide injunction from the same Judge Andrew Hanen of the District Court for the Southern District of Texas. A three-judge panel of the United States Court of Appeals for the Fifth Circuit upheld the injunction [see opinion blog], and the Fifth Circuit decision was subsequently affirmed by an equally divided Supreme Court of the United States [see article].

In June of 2017, then-Secretary of Homeland Security John Kelly rescinded the DAPA memorandum, but he left DACA in place [see article]. Texas sent a letter to the Department of Homeland Security (DHS) stating that it would seek to amend its DAPA lawsuit — still pending before Judge Hanen — were DHS to not rescind the DACA memo by September 5, 2017. On September 5, 2017, then-Acting Secretary of Homeland Security Elaine Duke rescinded the DACA memo based on her own judgment and on a legal determination made by Attorney General Jeff Sessions [see article]. The DACA program was to be rescinded on March 5, 2018, after having allowed for certain individuals to renew their DACA in the intervening six-month period.

However, two United States District Courts issued nationwide preliminary injunctions against the DACA rescission memo. First was the District of Northern California [see blog] and second was the Eastern District of New York [see blog]. The Supreme Court denied a petition by the Government for certiorari before judgment on February 26, 2018. Despite a ruling in favor of the Government on March 5, 2018, from the United States District Court for the District of Maryland, the injunctions setting the status of DACA to what it was prior to September 5, 2017, remain in effect. On April 24, 2018, the United States District Court for the District of Columbia issued an order reinstating DACA in full and vacating the DACA recession memorandum — a step further than the previous two injunctions — but it stayed the order for 60 days to give the Government the opportunity to provide a sounder legal justification for its decision.

Now, in its motion, Texas makes the case that it is likely to succeed on the merits of its claims that DACA is contrary to the Immigration and Nationality Act (INA), that DACA was issued in contravention of the statutory requirements of the Administrative Procedures Act (APA), and that DACA violates the Take Care Clause of the U.S. Constitution. Texas thereby implicates the same three points in its ultimately successful motion to enjoin DAPA, and Texas seeks a nationwide injunction on the same bases on which it won an injunction from Judge Hanen against DAPA. In its motion, Texas takes the position that the injunctions and orders issued against implementation of the DACA rescission memo by the United States District Courts for the District of Northern California, the Eastern District of New York, and the District of Columbia have no bearing on the authority of Judge Hanen to issue a nationwide preliminary injunction against DACA.

If Texas prevails before Judge Hanen, there is a distinct possibility that we will be left with dueling nationwide injunctions against the DACA rescission in three cases and against DACA in another. Such an event would likely draw the Supreme Court into the issue after it declined to take the case before the issues were fully adjudicated in the lower courts. In addition to implicating DACA, the case has the potential to pique the Supreme Court's interest in addressing the scope of the authority of district courts to issue nationwide injunctions, an issue that seemed to be of interest to Justice Neil Gorsuch at least in oral arguments over President Trump's entry restrictions against nationals of certain countries.

Although Judge Hanen ruled favorably on Texas' similar arguments against DAPA over three years ago, we cannot say for certain how he will ultimately rule on Texas' new motion, when he might enter his decision, and what the scope of such decision would be if it is in Texas' favor. Furthermore, it is likely that the Trump Administration will not seek to defend itself in the case in light of the fact that it has already taken the position that DACA is illegal, meaning that an outside group may take the position of arguing in favor of the legality of DACA.

As we have noted in previous posts, it is likely that, regardless of the outcome of the motion before Judge Hanen, the Trump Administration will quite possibly, if not most likely, prevail in terminating DACA once the issues are fully litigated. Regardless of the fate of DACA, the only way a permanent solution granting legal status to DACA beneficiaries and similarly-situated individuals will be reached is through Congress.

Current DACA beneficiaries should consult with an experienced immigration attorney for a full understanding of the current situation regarding DACA and how the current events may affect their specific immigration situation.

For those interested, you may see remarks from Texas Attorney General Ken Paxton on the lawsuit below: