Washington Watch: Focus is on the courts for DACA

In February, the Senate failed to pass any of three alternative bills that would have established a path to citizenship for approximately 1.8 million Dreamers, undocumented individuals that were brought to this country as children.

More recently, a push by moderate House Republicans to force a vote on the issue also failed. The prospect for further legislative action on this issue anytime soon is bleak.

During all of this, the U.S. Department of Homeland Security (DHS) has been accepting applications from current DACA recipients to renew their status for two more years, courtesy of multiple federal court orders. Further proceedings in these cases, which may very well wind up in the Supreme Court, now seem far more likely to decide the immediate fate of the DACA program.

Of the several lawsuits challenging the administration’s DACA termination last October, two resulted in nationwide injunctions that forced DHS to continue accepting DACA renewal applications. In another case, a District of Columbia circuit judge vacated the DACA termination altogether, though stayed his order to allow the government to present more evidence as to the DACA termination’s legality.

The deadline to submit briefs in this case was July 27. Should the judge in this case decide to uphold his original order, DHS must start processing initial applications for DACA status.

Eyes on Texas

But the case drawing the most attention is Texas v. Nielsen. Unlike the other cases that challenged the termination of the DACA program, this suit was brought by the attorneys general of Texas and other states challenging the legality of the DACA program itself. On August 8, the U.S. District Court for the Southern District of Texas will hold a hearing on whether to grant a preliminary injunction that could order DHS to immediately stop accepting DACA applications. The decision in this case will likely come sometime in the weeks after the August 8 hearing.

The federal government has asked the judge in the Texas case to stay (delay) any injunction for two weeks, to give the government time to file stay applications in the other federal courts that have ordered DHS to keep accepting DACA applications. The government may also file a stay application with the U.S. Supreme Court.

Should these stays be granted, DHS would no longer be under court order to accept DACA renewal applications. This could potentially happen as soon as mid-August. Though this is just one of several potential scenarios, many immigrants rights groups are advising DACA recipients who are eligible for renewal to file their applications as soon as possible.

Moving in appellate courts, too

While all of this is happening, the various DACA cases are also progressing to the appeals courts. The University of California’s case in the Ninth Circuit is furthest along, with a ruling expected any time now. Many expect that an appeal from one or more of these decisions will end up on the Supreme Court’s docket for its term that begins in October. Should that happen, the nation’s top court would likely rule sometime next spring.

Of course, all of these lawsuits could be obviated by enacted legislation that provides a path to citizenship for Dreamers, which remains the ultimate goal no matter how the DACA litigation turns out.

About the Author

Jim Hermes
is associate vice president of government relations at the American Association of Community Colleges.