Latino Education Coalition

 

The Latino Education Coalition is deeply concerned about the legal ruling on July 16, 2021, regarding the DACA program (Deferred Action for Childhood Arrivals) by United States District Judge Andrew S. Hanen in Texas. We deeply regret Judge Hanen ruled to terminate DACA, prohibiting the approval of “any new DACA applications” in the future. While the ruling appears to protect current DACA recipients, we are concerned that it does so “temporarily,” pending appeals. The Latino Education Coalition therefore strongly recommends the creation of a Colorado DACA to protect these young people.

 

This case was brought by the “State of Texas, Et. Al., Plaintiffs, against the United States of América, Et. Al., Defendants, and Karla Pérez, Et. Al., and the State of New Jersey, as Defendant-Intervenors.” Texas was joined by eight other states, and the U.S. was joined by the state of New Jersey and by “22 individual DACA recipients,” with Karla Pérez as the lead defendant.

 

The Judge’s ruling states, “The Plaintiff States argue in their motion and briefs that the Deferred Action for Childhood Arrivals (DACA) program is illegal because its creation violated, and its continued existence violates, the procedural and substantive aspect of the Administrative Procedure Act (APA)” as well as the “Take Care Clause” of the U.S. Constitution (page 2).  The Plaintiffs, Texas Et. Al., argued against DACA certification for children who “came to the United States under the age of sixteen,” “honorably discharged veteran of the Coast Guard or Armed Forces of the United States,” and all other DACA recipients who fulfill the requirements under the original program set forth in 2012 (pages 3 and 4).

 

The lengthy ruling—some 77 pages—reviews the history of DACA, the definition of “deferred action” in the name, the varying numbers of DACA recipients, the back-and-forth lawsuits opposing and supporting it, and the legal findings, rulings, and appeals.  These include the December 4, 2020, ruling in the Batalla Vidal v. Wolf District Court case which, after the previous myriad litigations, “found that DACA is currently governed by the same terms as it was in 2012, before any attempted rescission” (page 10).  Also, “In other words, 2012 DACA is the policy in effect now” (page13). Already having been filed previously, such proceedings led to “State of Texas, Et. Al., Plaintiffs…” filing in May of 2018 which resulted in the current ruling of July 16, 2021.

 

By our reading, one of the key aspects of this current “Texas Et. Al. Plaintiffs…” ruling is with the question whether these Plaintiffs have and/or should be granted “special solicitude” and “quasi sovereign” status as states, thereby giving Texas and its eight associate states “standing to sue”: “…a state is afforded ‘special solicitude’ when it alleges that a defendant ‘violated a congressionally accorded procedural right which affected the State’s ‘quasi sovereign’ interests in, for instance, its physical territory or lawmaking function” (page 15).

 

For DACA recipients and their supporters, the definition of both “special solicitude” and “quasi sovereign” matters greatly. “The Fifth Circuit has explicitly interpreted special solicitude to lower the level of certainty required in the traditional causation and redressability analysis,” (page 14), indicating apparently setting a lower bar for the right to sue.

 

As ResearchGate informs us, “In Massachusetts v. EPA, the United States Supreme Court attempted to relax the standing requirements for states that are suing the federal government. The decision is based on a new and confusing rule that a state should be given special consideration—or ‘special solicitude’—when courts consider whether it has standing to sue the federal government.”

 

As the current “Texas Et. Al. Plaintiffs…” ruling states, “Applying the law set out in Massachusetts v. EPA and Texas I, the Court finds that Texas is entitled to special solicitude.” Therefore, Texas and the eight other Plaintiff states were given “special consideration” in their lawsuits against DACA.

 

The term “quasi sovereign” is at least as troubling for DACA, if not more so.  As the Law Insider definition states, it can be applied as, “Harm to Sovereign and Quasi-Sovereign Interests In addition to the injuries that the Executive Order is inflicting on States’ proprietary interests, the Executive Order also harms the amici States’ well- established sovereign and quasi-sovereign interests.”

 

The interpretation in “Texas Et. Al. Plaintiffs…” does not appear to us to concern itself with the important consideration of granting to the states those rights not specifically mentioned in the U.S. Constitution as adhering to the Federal Government. Rather, these key terms appear to be a linguistic modernizing of the old “States Rights” arguments certain states used for Jim Crow legislation to deprive Blacks and other minorities of their Constitutional individual rights. It was tragically effective then, and it is being used now in “Texas Et. Al. Plaintiffs…,” as the Court found that “…Texas has demonstrated a quasi-sovereign interest in its own economic well-being and that of its citizens to support its entitlement to special solicitude in the standing analysis” of the lawsuit by Texas and the eight other Plaintiff states against DACA (page 18).

 

The Federal Judge’s ruling in this case is overwhelming and distressing to both current and potential future DACA recipients. As the Conclusion states, referring to the Department of Homeland Security, or DHS, which in 2012 created DACA, and the Administrative Procedure Act, or APA, “DHS violated the APA with the creation of DACA and its continued operation. The Motion for Summary Judgment filed by the Plaintiff States is granted in part and denied in part….  The DACA Memorandum and the DACA program that it created are hereby vacated and remanded to DHS for further consideration, as requested” (page 76).  We have seen in media reports that the current DACA recipients will still be granted DACA protection and assistance, such as work authorization permits.  However, such a reading ignores the last sentence in the penultimate paragraph: “Therefore, the immediate vacatur as it applies to current DACA recipients (but not the order of remand) is temporarily stayed until a further order of this Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court” (page 77).  The term “temporarily,” for us, is the compelling term especially since the ruling expresses “until a further order of this Court, the Fifth Circuit Court of Appeals,” or the Supreme Court.  No timeline is given for when this ruling by this judge might give “a further order.” While the concluding paragraph states that “DHS may continue to accept new DACA applications… it is hereby enjoined from approving any new DACA applications and granting the attendant status.”

 

Importantly, current recipients must reapply for DACA renewal every two years, which adds another complicating factor in their future.

 

The Latino Education Coalition (LEC) is vehemently opposed to this ruling and its devastating impact on the young people who have been granted DACA status since the creation of the program in 2012 and those who might have received such standing in the future. To be clear, we are the Latino Education Coalition, with emphasis on Education, but we will equally fight for all current and potential DACA recipients. Colorado’s ASSET Legislation of 2013 (Advancing Students for a Stronger Economy Tomorrow) provides in-state tuition for young undocumented students, and DACA provides them with additional stability. ASSET, passed by the Colorado State Legislature and signed by the Governor, has provided undocumented students with a “document” of identification, thereby contravening their “undocumented” status, a major Colorado civil rights accomplishment.

 

This ruling is especially cruel because these young people were brought to Colorado as children, at an average age of 6 years old, so they broke no laws since children according to the U.S. legal system are incapable of breaking any law until at least 10 years old, and between 10 and 15, the courts engage in protecting the child rather than punishing them. “Deferred Action” should therefore be a given.

 

The Judge’s ruling was very selective in considering DACA’s effect on the Plaintiffs, as it indicated that Texas and its eight attendant states had to be protected economically from DACA recipients and other immigrants to protect American citizens from competition for jobs. Is it the fault of the DACA young people—brought here, as stated above, at an average age of six years old—that immigrants can apparently out-perform American-born workers in Texas and its amici states?  If so, the answer is not in further oppressing these young people but rather in addressing the nature and temperament of their citizens. While DACA recipients receive some protections and benefits, such as the work authorization permits, other Federal benefits are closed to them, including Pell Grants to ASSET higher education students. And yet, DACA recipients pay taxes of all sorts, including Federal and Social Security taxes.

 

Finally for this statement, we strongly urge Colorado political representatives and the general public to create a Colorado DACA. This is eminently possible and will provide necessary protection. One of the requirements in the 2012 DACA Memorandum which established the program is that an applicant “has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety.” How then could they be considered so negatively that “special solicitude” and “quasi-sovereign” states must be protected from them?  Federal vs. Colorado state laws on marijuana are instructive for a potential Colorado DACA. While marijuana possession, use, and sales are illegal by Federal law, including in Colorado—even reaching the status of felonies depending on circumstances—Colorado adult residents over the age of 21 receive not only “deferred action” but non-action from prosecution for such actions.

 

The Latino Education Coalition is vehemently opposed to this ruling and its devastating impact on the young people who have been granted DACA status since the creation of the program in 2012 and those who might have received such standing in the future. To be clear, we are the Latino Education Coalition, with emphasis on Education, but we will equally fight for all current and potential DACA recipients.

 

The LEC argues in this situation that if “special solicitude” and “quasi-sovereign” assertions by the Plaintiff states can effectively derail DACA, they can also be used to create Colorado’s own version of DACA to provide the current and future recipients such protection.

 

Colorado’s recent governors and Denver mayors have been leaders in working to protect immigrants. LEC recommends that Governor Jared Polis could issue an Executive Order to create a Colorado DACA, supported by Denver Mayor Michael Hancock issuing a Denver DACA executive order. Both government leaders have issued several Executive Orders. We refer as precursor to then-Governor John Hickenlooper’s 2018 “B 2018 008 Executive Order” forbidding “Using State Resources to Separate Children from Their Parents or Legal Guardians on the Sole Ground of Immigration Status.” Likewise, Governor Polis has been especially solicitous of laws to provide support for and protection of immigrants in various ways during the COVID-19 pandemic. Similarly, Mayor Hancock could issue a Denver DACA Executive Order to supplement a Colorado DACA.  This would follow upon Mayor Hancock’s 2017 Executive Order No. 142: “Standing with Immigrants and Refugees: A Safe and Welcoming City for All of Denver’s People”

 

The LEC realizes this current “Texas ET. Al. Plaintiffs…” ruling is but one in a long list of laws and rules and regulations against our population. There is much more to be said about previous DACA rulings and this current iteration, and there is much more to be done to assist DACA recipients and other immigrants. We ask you to come together with us to provide such protection for our community.

 

Federal Ruling Will Have Devastating Impact on Young People

Latino Education Coalition DACA sub-committee members include Ramón Del Castillo, PhD, Luis Torres, PhD, and Nita Gonzales.

 

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