A Complicated Trajectory For DACA In Texas

In the next few weeks, thousands of Texans with DACA will be waiting to hear the latest legal move from a District Court for the Southern District of Texas. Because Judge Andrew Hanen will be issuing a ruling that has the potential to create a Texas-sized hole in DACA protections – and up to 90,000 Texans could be impacted.

In 2012, President Obama announced the creation of a program known as DACA (the Deferred Action for Childhood Arrivals), which permitted young immigrants brought to the United States as children to remain temporarily in the country with two-year work visas. Ever since its announcement, DACA has been a target of Republicans hostile towards expanding immigration.

In 2015, Texas Attorney General Ken Paxton led a multi-state effort against DAPA (Deferred Action for Parents of Americans) as well as an expansion of DACA at the Supreme Court. Two years later, Paxton demanded DACA be rescinded in full. Soon, the Trump-era Justice Department announced that DACA was rescinded in September 2017 and within six months they would stop processing renewals. Several lawsuits followed and injunctions kept the program alive, but essentially on life support. 

Still, Paxton was not done. In 2018, Texas led the way in a case, Texas v. United States, to challenge the legality of DACA once again. The case, filed in the Southern District of Texas, landed with District Court Judge Hanen. In July 2021, Hanen ruled that DACA is unlawful, but he allowed the two-year renewals to remain for current recipients. There was then a lengthy legal back-and-forth, but ultimately the Fifth Circuit earlier this year issued a ruling that mostly upheld Hanen’s initial judgment.

Crucially, however, the Fifth Circuit preserved deportation protections within DACA and limited the provisions Hanen set forth only to Texas. The Fifth Circuit then sent back the case to Hanen to oversee how DACA should function under these new legal parameters.

Which makes the whole status of DACA complicated, especially for Texas. Recently, the Department of Homeland Security signaled in Hanen’s court that they would be re-opening DACA applications for first-time applicants for the first time in years. However, applicants in Texas would only be shielded from deportation, and not be eligible for work permits. There’s also a chance that current DACA recipients could fully lose their status to work in Texas depending on Hanen’s future ruling. And a potential wind-down period could be as short as fifteen days.

For somebody like Juan Carlos Cerda, the Texas State Director for the American Business Immigration Coalition, the current status of DACA is a mixed bag. On the one hand, Cerda is happy that a new generation of potential DACA recipients will be able to apply for the first time. Still, the idea that Texas (which has the second largest population of DACA recipients in the nation) has an explicit carve-out is tough for him and other immigration proponents to bear.  “Not being able to have access to a work permit will be a very detrimental thing for our state,” he told the Signal.

For now, Hanen is hearing briefs by the parties in the DACA litigation, including the state of Texas. The earliest decision from Hanen could come at the end of the month, though many expect it to arrive at the end of the year or early 2026.

Cerda says that DACA recipients in Texas should continue to renew their permits, and those within their six-month renewal period should look to renew as soon as possible. Cerda notes that those newly eligible for DACA in Texas should consider the feasibility of relocating to a new state in order to also apply for work authorization, but he stresses that Hanen’s final recommendations are not here yet.  “Nobody should be in a haste to leave just yet,” said Cerda.