Will DACA survive the litigation roller coaster?

By Dianne Solis
The Dallas Morning News/TNS

DALLAS - Greisa Martínez Rosas was still a teen when she led a 2006 walkout at her Dallas high school over proposals that threatened deportation for her undocumented family. Today, at 32, from Washington, D.C., she leads the nation’s largest organization for undocumented immigrants who call themselves Dreamers.

As the head of United We Dream, she’s front and center of a defense to keep alive the 2012 initiative known as Deferred Action for Childhood Arrivals, or DACA, that provides work permits and deportation reprieves. A White House exit for President Donald Trump, a DACA opponent, is only weeks away, but DACA still faces a huge challenge: On Dec. 22, a federal judge is scheduled to hold a hearing on its legality in a case brought by the State of Texas.

The hearing before U.S. District Judge Andrew Hanen in Houston comes after court victories for Dreamers whose attorneys said the Trump administration erred in the ways it tried to end DACA. The Texas case is more significant.

“We’re holding people to the discipline of hope,” said Martínez Rosas who became executive director of the United We Dream advocacy group in August. “We’re not out of the woods when it comes to litigation yet. We know that Hanen in Texas is set to make a decision on whether or not DACA is legal.”

Those with DACA, “are facing possibly the worst court decision since the program was created,” said Sarah Pierce, a lawyer and policy analyst at the nonpartisan Migration Policy Institute. “It is a heart-wrenching situation.”

About 650,000 undocumented immigrants who came to the U.S. as children with a parent now hold DACA. The families either crossed the border unlawfully or overstayed visas. Today, the younger immigrants can lawfully be employed and secure driver’s licenses - crucial to making a living. But they have no pathway to citizenship.

Notably, the federal judge in the Texas case, brought by Republican Attorney General Ken Paxton, has ruled against two other deferred action programs initiated by the Obama administration. One potentially covered an estimated 4 million adults.

Stephen Yale-Loehr, an immigration law professor at Cornell Law School, said a decision by Hanen, an appointee of former President George W. Bush, could be grim for DACA recipients.

“Given Judge Hanen’s past decisions on this issue, I think he is likely to rule that the DACA program is illegal,” Yale-Loehr said.

Appeals, or the issuance of new executive measure by President-elect Joe Biden, could result in long litigation before there’s a final decision, Yale-Loehr said.

Martínez Rosas came across the Mexican border with her parents while a small child. The family settled in the Oak Cliff area of Dallas. She graduated from Yvonne A. Ewell Townview Center. Over the last 15 years, she’s fought on immigration issues, even as her father was deported back to Mexico and her mother died of cancer.

While still in high school, she worked with the late civil rights leader Adelfa Callejo on a campaign for each individual young person to deliver five voters to the poll. She credits Callejo with mentoring her on political leadership.

She was an early believer in the movement of Dreamers, young immigrants who had hoped for a successful path to citizenship through permanent legislation. It failed. Their big accomplishment came in 2012 when then-President Barack Obama started DACA through an executive measure.

Trump declared he’d end DACA after becoming president. Anti-immigration attacks, tinged with racist rhetoric, were a signature mark of his presidency.

But under a court decision this December, applications for DACA can resume for the first time since the Trump administration tried to kill the program in September 2017. About 56,000 immigrant children have aged into DACA-eligibility, by turning 15 years of age, since 2017, according to the Migration Policy Institute.

Martínez Rosas is shepherding United We Dream through the biggest DACA challenge yet - and then she’ll be turning her attention to the new administration and broader deportation issues, including a push for a program to provide a citizenship pathway for many of the nation’s 11 million undocumented immigrants.

President-elect Joe Biden has called for a deportation moratorium for his first 100 days in office, except when a person to be deported has a felony. He has also said he’ll quickly submit a comprehensive overhaul of the nation’s immigration laws.

“We feel a lot of ownership over this presidency, having delivered millions of people and millions of young people millions of Latinos through the vote,” Martínez Rosas said.

She said she’s encouraged by Biden’s choice of Alejandro Mayorkas, an immigrant Latino, as the head of the Department of Homeland Security. He previously worked in the Obama administration and helped craft DACA.

But first, DACA takes another turn on the litigation roller coaster.

The case on DACA’s legality dates back to 2018 when Paxton filed in the southern district of the federal court system. A handful of other states joined in.

“Texas is the only case that challenges the legality of DACA,” said Tom Saenz, the lawyer who leads the Mexican American Legal Defense and Educational Fund, known as MALDEF. The civil rights group contends it was constructed as “a lawful exercise of executive discretion consistent with similar exercise of discretion exercised by presidents of both parties.”

“We have prosecutorial discretion and we recognize that government has to make decisions about resource allocation,” Saenz said. “If we said to every district attorney, you must prosecute every possible violation, they would be wasting their time and resources on cases they are going to lose, instead of deciding to expend limited resources on cases they believe they could win.”

But Paxton in his suit argues that the U.S. government, through the executive branch. overstepped its boundaries. “If the nation truly wants to have a DACA program, it is up to Congress to say so,” the state attorneys argued in a federal filing. “Congress has not yet said so, so DACA remains just as unlawful today as it was when it was created through the 2012 DACA memorandum.”

The Texas suit isn’t about the executive branch’s ability to “prioritize removal resources, either,” a Paxton filing reads.

“This lawsuit is emphatically about the rule of law,” the complaint reads. “The policy merits of immigration laws are debated in and decided by Congress. The Executive Branch does not exercise a lawmaking role. Its duty is to take care that the law is faithfully executed - substantive immigration law and procedural administrative law alike.”

If the Dreamers lose in the Houston court, an appeal would be made by MALDEF. Or another policy could be created by the Biden administration, something like DACA but capable of withstanding court challenges, Saenz and others said.

But the issue of a permanent solution remains. For years, Congress hasn’t been able to agree on even piecemeal legislation to assist Dreamers, let alone a comprehensive overhaul.

That doesn’t tamp down Martínez Rosas’ optimism.

“I start from a place of opportunity and promise,” she said. “What will not be acceptable is a delayed response to this pain that people have been in in the last 20 years and then has been intensified in the last four.”

Activists hold a banner in front of the US Supreme Court in Washington, D.C., on June 18, 2020.