DREAM Act Portal Forum - Judge Urged To Deny Texas Quick Win In DACA Suit

Law360 (June 17, 2019, 10:01 PM EDT) -- An advocacy group opposing a coalition of states' challenge to the Deferred Action for Childhood Arrivals program urged a Texas federal court not to rule on the program’s legality right now, saying the coalition is seeking a premature ruling.

Mexican American Legal Defense and Educational Fund told U.S. District Judge Andrew S. Hanen on Friday that he should not grant the February summary judgment motion by Texas and six other states, pointing out that the record on which the motion is based is as incomplete as when the court denied the states' bid for a preliminary injunction of the program.

Since the initial denial, the state coalition has been slow to provide responses to MALDEF’s discovery requests, and as such, “evidence related to the key factual questions in dispute at the preliminary injunction stage is still being developed through discovery,” according to the brief.

“Plaintiffs’ motion for summary judgment should be denied, because it is in substance nothing more than a request for reconsideration, on the same record, of the court’s previous denial of summary judgment at the time of preliminary injunction briefing,” the brief reads. “Plaintiffs’ motion merely recycles the same arguments from plaintiffs’ earlier briefing, without presenting or attaching any new evidence.”

The state of New Jersey also filed a Friday brief opposing the states’ summary judgment motion, similarly arguing that the court should not decide on the legality of DACA while the “holes in the factual record are glaring.”

“Plaintiff states seek an end-run around that order and an end to DACA, despite the existence of substantial questions of fact that remain unresolved,” New Jersey’s brief reads. “But plaintiff states and federal defendants have failed to provide the discovery that is necessary to address the outstanding legal issues surrounding the legality of DACA, and this court should adhere to its original plan and allow the parties a full and fair opportunity to discover and present to the court the facts that will allow it to address the important legal and practical issues raised in this case.”

Texas, joined by Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia, filed the lawsuit in May 2018, alleging that the 2012 executive action that created DACA was improper lawmaking by the executive branch. The states were later joined by Kansas and the governors of Maine and Mississippi, but Maine withdrew in January after the state elected a new governor.

The Trump administration — which announced in September 2017 that it would phase out DACA — refused to defend the program in court, agreeing with the states that President Barack Obama lacked the authority to launch DACA. Both MALDEF and the New Jersey Attorney General's Office joined the litigation in support of DACA.

The states have also leaned heavily on Judge Hanen's 2015 decision — which was affirmed by the Fifth Circuit — blocking an expansion of DACA as well as the implementation of a second program, known as Deferred Action for Parents of Americans, that would have carved out protections for the parents of U.S. citizens and permanent residents.

In August 2018, Judge Hanen declined to issue an injunction stopping the government from renewing or issuing new DACA permits, but also found that the states are likely to succeed in proving that the program constitutes an unlawful executive action.

The states moved for summary judgment in February, saying the DACA program violates the Administrative Procedure Act and the U.S. Constitution's take care clause, which mandates that the president "take care that the laws be faithfully executed."

“Our response focuses on the fact that the states’ motion for summary judgment is premature,” Nina Perales, MALDEF’s vice president of litigation, told Law360 on Monday. “Because we are currently in the middle of discovery with several pending motions to compel and to strike experts, our response brief asks the judge to allow the litigation to proceed as planned before taking up dispositive motions.”

Counsel for the other parties did not immediately respond to requests for comment Monday.

MALDEF is represented in-house by Nina Perales, Alejandra Avila, Ernest Herrera and Denise Hulett, Douglas Hallward-Driemeier of Ropes & Gray LLP, and Carlos Moctezuma Garcia of Garcia & Garcia Attorneys At Law PLLC.

New Jersey is represented by New Jersey Attorney General Gurbir S. Grewal, Glenn J. Moramarco, Jeremy Hollander, Katherine A. Gregory and Kenneth S. Levine of the New Jersey Attorney General's Office.

The state coalition is represented by Todd Lawrence Disher of the Texas Office of the Attorney General.

The case is State of Texas et al. v. U.S. et al., case number 1:18-cv-00068, in the U.S. District Court for the Southern District of Texas.

--Additional reporting by Nicole Narea and Suzanne Monyak. Editing by Haylee Pearl.

https://www.law360.com/immigration/articles/1169939