Conservative states seek to end protections for immigrant ‘Dreamers’

NEW ORLEANS – Through decades of debate over illegal immigration, one group has been singled out for special protection. For the past 12 years, immigrants who were brought into the U.S. illegally as children and who grew up in the country have enjoyed the ability to build careers and raise their own families without fear of deportation, thanks to the Deferred Action for Childhood Arrivals program, also known as DACA.

The program has persisted through three presidencies thanks to Congress’ failure to adopt a comprehensive immigration overhaul. But it has been under attack by Texas and six other Republican-led states for years, and may now be approaching its moment of greatest legal peril, having reached what is widely regarded as the most conservative appellate court in the country.

That court, the 5th U.S. Circuit Court of Appeals, heard arguments Thursday before a three-judge panel about whether to uphold a sweeping ruling by a trial court judge that would end DACA altogether.

The program was created by President Barack Obama by executive action as a temporary fix until Congress passed legislation to address the fate of the Dreamers, as the group is known.

It has since proved hugely popular, enabling hundreds of thousands of beneficiaries to become employed at tech companies, universities and hospitals. Many have bought homes and paid taxes. At its peak, some 800,000 people were enrolled in DACA, a number that has more recently shrunk to about 500,000.

President Donald Trump moved to kill the program in 2017, one of a number of measures his administration took to try to reduce the number of immigrants living illegally in the country. The program has been suspended, reinstated and partly rolled back by court rulings ever since. Conservatives in Texas and other states filed the challenge now being heard in 2018.

The case is in front of the 5th Circuit, which already has upheld a number of legal challenges brought by conservatives, and it comes at a time when the DACA program is at a critical juncture.

Last year, Judge Andrew S. Hanen of the Southern District of Texas ruled that the Biden administration’s attempt to formalize DACA to allow it to remain in place was insufficient, and that in any case, Obama had overstepped his constitutional authority in creating it.

Hanen agreed with the states challenging the program that it had been “illegally enacted.” His order, which remains on hold pending the current appeal, would put an end to DACA not only in the states that sued, but across the country.

At Thursday’s hearing, the judges asked questions about the states’ contention that any order to end DACA should be applied nationwide, even in states led by Democrats, who argue the program helps their communities and economies.

“How could a single judge tell all 22 other states who are so grateful for these people that actually they’ve all got to leave the United States?” Judge Stephen A. Higginson asked. “How does a single judge have that authority?”

Higginson, who was nominated by Obama, also questioned Texas’ key assertion that immigrants with DACA protection who are living in the state have been a financial strain, and that ending the program would eliminate those costs. Proponents of the program note that many of the so-called Dreamers came to the United States as young children and have never known a life anywhere else.

“The logic is people that are lifelong residents of Texas, if they lose the program, they’re going to go back to countries they never lived in? Is that the logic?” Higginson asked the lawyers.

Joseph Mazzara, who was arguing on behalf of the Texas attorney general, responded that DACA recipients would most likely leave the country voluntarily if the program were ended. As evidence, he cited an annual survey of more than 3,000 DACA recipients compiled by Tom K. Wong, who directs the U.S. Immigration Policy Center at the University of California, San Diego.

But Wong, in a telephone interview, said that Mazzara’s claim was based on older data, and that as the years have gone by, DACA recipients were increasingly likely to say they wanted to stay in the United States. “Every DACA recipient I’ve spoken to says that they’re going to do everything they can to stay here and continue to build their lives,” he said. “I think what we’ll see in this year’s survey is that the overwhelming majority are going to stay, regardless of whether DACA continues.”

Nina Perales, an attorney at the Mexican American Legal Defense and Educational Fund, a nonprofit representing DACA recipients who intervened in the case, told the court that the costs that Texas points to – expenditures for the immigrants’ education and health care – “have no direct tie to DACA.”

“Any person in the state of Texas, citizen or not, is entitled to the same types of services, emergency health care and public K through 12 education,” Perales said.

After the hearing, Perales and other lawyers defending DACA said that they were pleased that all three judges seemed particularly engaged in the main issues they raised, including whether Texas had the legal right to sue in the first place, an issue known as standing. In recent years, the Supreme Court has overturned a number of 5th Circuit decisions for taking too broad a view of standing.

In June 2023, the Supreme Court held in an 8-1 decision that states do not have the standing to challenge the executive branch’s authority to establish enforcement priorities for immigration, namely to exercise discretion over whom to arrest and deport.

Higginson, at Thursday’s hearing, invoked the high court’s opinion in that case, which had been brought by Texas and Louisiana. “States cannot use district courts to usurp federal immigration policy,” he said.

But Judge Jerry Edwin Smith, a Ronald Reagan nominee, seemed to take a different view of the same Supreme Court opinion, saying that because it concerned executive branch decisions about enforcement, it did not apply to the current case. “The Supreme Court has not addressed this particular situation in standing,” he said.

When it first adopted the DACA program, the Obama administration offered its protections to immigrants who were under the age of 31, had been brought into the country illegally as children, completed high school and met other requirements. It did not offer a pathway to U.S. citizenship, and recipients were required to apply and pay a fee to renew their protection every two years.

Since then, there have been frequent political discussions about making the protections permanent. But legislation never materialized in a polarized Congress, even though the DACA recipients had the support of many Republican lawmakers and the American public, according to polls.

Since mid-2021, after the Texas judge ruled that DACA was illegal, only renewals have been accepted; no new immigrants have been allowed to enroll. Many DACA recipients now have children of their own, who are U.S. citizens.

“We’re also talking about 250,000 U.S.-citizen children,” Jeremy Feigenbaum, New Jersey’s solicitor general, told the court. His state intervened in the case to defend the program, and 21 other states later joined in a brief arguing to keep it in place. “It’s also workers at companies that are owned by CEOs that are DACA recipients, or founders that are DACA recipients,” Feigenbaum said.

On Thursday, dozens of DACA beneficiaries and their supporters, who had traveled to New Orleans from across the country, gathered outside the John Minor Wisdom U.S. Court of Appeals Building chanting, “Say it loud, say it clear. Immigrants are welcome here.” Many wore yellow T-shirts that read “Home is here.” They hoisted posters and stretched out banners.

One of those outside the hearing was Sandra Avalos, 35, who was brought to the United States from Mexico at age 7 and now has a job working with truant juveniles in Dallas. She keeps it by reapplying for DACA protection every two years.

Her sister, a nurse, and her brother, who works in logistics, also are enrolled in DACA. If it ends, she said, she will lose her job and her driver’s license, and potentially be deported and separated from her U.S.-born son.

“A police officer could pull me over, and that could be it,” Avalos said before the court hearing. But after the hearing, she said, she felt “very hopeful.”

This article originally appeared in The New York Times.