Lawyers for a Mexican-born college student who has taken part in the “DACA” program sparing young undocumented immigrants from deportation on Tuesday launched an attempt to overturn the Trump Administration’s plan to end those benefits. The new maneuver seeks to convert an existing federal court lawsuit into a broad constitutional challenge aimed at saving the Deferred Action for Childhood Arrivals.
Part of the lawyers’ new challenge is that the DACA program’s planned end by the Trump Administration was “unconstitutionally motivated” by bias – by President Trump himself – against Mexicans and Latinos.
The effort began within hours after two federal agencies announced the President’s decision to scuttle the five-year-old program that began in the Obama Administration, with the program’s demise to come after a six-month “wind-down” period. Officials of the Justice Department and the Homeland Security Department acted because, they said, the courts were likely to strike down the program in an ongoing lawsuit in a Texas federal trial court.
In fact, the new challenge launched Tuesday in a federal trial court in Brooklyn, N.Y., came in a lawsuit that was originally begun about a year ago in an attempt to limit the nationwide reach of an order by the Texas federal judge blocking an expansion of DACA that the Obama Administration had put into effect in November 2014.
Based on that Texas order, which the judge made nationwide in its reach, federal immigration authorities nullified a three-year work permit that they had given last year to Martin Jonathan Batalla Vidal of Queens, New York, who has held a job while doing medical studies in college.
A Mexican national who entered the U.S. illegally at age six more than 20 years ago, Batalla Vidal and a community action organization, Make the Road New York, then sued those officials, contending that the Texas judge had no authority to make his order apply all across the country, to people and organizations that were not parties in that judge’s court.
That lawsuit has been moving on a slow track since it was originally filed in August last year, with the schedule delayed most recently while the attorneys involved continued to try to sort out how the ongoing Texas case was proceeding as a broad challenge to all of President Obama’s efforts to put off deportation of undocumented immigrants. The original 2012 version of DACA has not been blocked by the Texas order, but the expansion in 2014 that benefitted Batalla Vidal was directly halted by that judge. (Batalla Vidal still has a work permit because, after being denied the three-year document, he got a two-year permit that apparently has not yet run out. If the DACA program ends, and his current permit expired, he could be subject to deportation to Mexico.)
With the Trump Administration’s action on Tuesday morning, the original DACA program that has continued uninterrupted since the beginning was put on a six-month rescission schedule, with officials saying that Congress could use the time to save the program if it wished.
In the new legal maneuver in the Brooklyn federal court, attorneys for Batalla Vidal and the community action organization told U.S. District Judge Nicholas G. Garaufis that they would soon be seeking to change their lawsuit from a challenge only to the Texas judge’s order into a broader one that would include new claims against the new Trump decision to scuttle the program altogether.
Arguing that the Trump decision was illegal under federal law because it represented a switch in policy position that has not been justified – as they argued the government must do when it makes a major change in an administrative program, the lawyers also contended that the ending of DACA would violate the constitutional due process guaranteed by the Fifth Amendment.
“Millions of people have benefitted from, and relied on, the DACA program over the past five years,” the motion said. Given that all of those people have interests that have deepened over the years, the government has to have a stronger reason than it has given before it can constitutionally end the program and wipe out those interests, it added.
Moreover, the motion argued, the ending of DACA was a result of the alleged unconstitutional bias that the attorneys said President Trump has displayed as a candidate and since taking office.
Technically, the lawyers need Judge Garaufis’s permission to pursue their lawsuit in the amended version to try to salvage DACA. He agreed immediately to the lawyers’ request to hold a conference among lawyers on both sides to set up a schedule to deal with the new maneuver.
The lawyers said their plan is to ask the judge to allow a new legal complaint, and to allow them to add their new legal grievances and add new individuals or organizations as challengers. They also indicated that they may seek “emergency or expedited relief” – a signal that they may try to get an order from the judge to block the new Trump initiative against DACA while the case goes forward in Judge Garaufis’s court.
Other challenges to the new Trump order are expected to be filed in courts in other state
Meanwhile, the Texas attorney general, who has led a coalition of states opposed to President Obama’s deferred deportation policies, on Tuesday afternoon moved to put an end to that lawsuit that had been unfolding since late 2014. In a brief motion, which said that it would take effect even without the judge’s approval, state Attorney General Ken Paxton said that the Trump Administration’s new move to “phase out” the remaining DACA program and its earlier move to end the parental part of the deferred deportation policy led to the decision to voluntarily end that case.
It was a threat by Paxton and his multi-state legal allies to start a new challenge to DACA that had played a significant role in getting the Trump Administration to act by the September 5 deadline those challengers had set.
