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September 22, 2023
Judge Hanen again rules against DACA, but the status quo continues
Last week, Judge Hanen issued his opinion in the DACA litigation, holding (as expected) that the regulation codifying DACA is unlawful for the same reasons he held in 2021 that the prior version of DACA created by a DHS memorandum was unlawful, saying that there are no “material differences” between the two. His decision continues to maintain the status quo: the approximately 580,000 DACAmented individuals can continue to renew for now, but DHS is not allowed to newly grant DACA to any of the hundreds of thousands of undocumented youth who meet the program’s eligibility requirements but are barred from applying for it. The decision is expected to be appealed to the Fifth Circuit.
Texas v. DHS (CHNV parole case): Trial summary and what to expect in the coming months
Trial at the Southern District Court of Texas in Victoria started on August 24, with an opening statement from the Intervenor Defendants. Texas (plaintiff) and the federal government (defendants) waived making an opening statement. One of the intervenor defendants, Eric Sype, then testified live about sponsoring his long-time friend through the CHNV program. All documentary evidence was admitted before trial, so the parties then went straight to closing arguments.
During closing, Texas argued, among other things, that the federal government did not go through the required procedures in implementing the program and that the government is granting parole en masse and not on a “case by case” basis, as required by law. Much of Texas’s time was spent defending its basis for standing—that it costs Texas money to provide services to CHNV parolees—given the unequivocal evidence that the programs have resulted in fewer nationals of those four countries coming to Texas. Judge Tipton repeatedly questioned Texas on whether it could show it had to spend any money at all—even one dollar from the CHNV parole program. Relatedly, Judge Tipton also pressed Texas on how ending the program would redress its alleged harms.
Defendants focused on the legality of the CHNV program, including how they adhere to statutory requirements. Intervenor defendants also noted that the CHNV program is in line with the historical uses of parole and this is the first time in the 70+ year history of the parole authority that a program is being challenged, as current and prior administrations have frequently used parole in ways that are indistinguishable from the CHNV program, including Uniting for Ukraine). Intervenor defendants additionally reinforced the immeasurable benefits the programs provide to qualifying individuals and the communities who receive them. Several news outlets covered the trial and published accounts of the intervenor defendant sponsors supporting the program, such as these op-eds by Valerie Laveus in the Miami Herald and Paul Zito in the Houston Chronicle.
After closing arguments, Judge Tipton requested post-trial briefing on specific questions, due at the end of September; responses are then due on October 27. A decision could come anytime thereafter, although typically it takes a month or two for an opinion to be issued, and often longer. Transcripts of the trial are on its case page at our Litigation Tracker.
As always, we’ll keep you posted on these and other cases.
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Thanks for reading,
Karen Tumlin
Founder and Director
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