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A Business-Minded Defense of DACA

“These individuals are part of the fabric of the Texas economy. The disruption that would occur if the program were taken away would be overwhelmingly significant.”

When the Houston Hispanic Chamber of Commerce asked V&E to represent the Chamber in support of the Deferred Action for Childhood Arrivals (DACA) program this past May, it didn’t take long for the firm to respond.

“There was a very strong and quick recognition that this was something we had to do,” said V&E counsel Beto Cardenas. “This fell in line with the values of our firm and the story that has been part of our history for the last hundred years: Alongside the big corporate deals we work on for our clients, we take on work that enhances the communities in which we live.”

Three months after taking on the pro bono matter, V&E, the Chamber — and the approximately 800,0000 people who have been granted DACA status since 2012 — got some good news: Andrew Hanen, United States District Judge for the Southern District of Texas denied a preliminary injunction motion that would have shut down the program. As a result, Texas-based Dreamers — immigrants who were brought to this country as children — can continue to apply for and renew their DACA status, allowing them to work legally and live without fear of immediate deportation.

Making a business case for DACA

The Houston Hispanic Chamber of Commerce enlisted V&E’s help after the Texas Attorney General filed a lawsuit against the federal government challenging the constitutionality of DACA, and then filed a preliminary injunction motion seeking to stop the federal government from issuing or renewing any DACA permits while the lawsuit was pending.

In response, a group of “intervenors” in the case – actual DACA recipients represented by the Mexican American Legal Defense and Education Fund (MALDEF) – opposed the state of Texas’ efforts to shut down DACA.

Seeking to support the intervenors, the Chamber reached out to Cardenas to ask if V&E would draft an Amicus brief that would demonstrate the degree to which the preservation of DACA is critical to the Texas economy.

“DACA recipients had explained the human cost of shutting down DACA, but DACA and DACA recipients also confer some real benefits on the State of Texas and on Texas businesses,” said V&E counsel Marisa Antos-Fallon.

V&E pulls together a dream team to help the Dreamers

V&E’s Pro Bono Chair, Harry Reasoner, assembled a team including Cardenas who played a pivotal role in mobilizing a coalition of businesses and business associations, V&E partner Thomas Leatherbury, who served as the attorney in charge of the matter, and Antos-Fallon, who drafted the brief with help from V&E associate Sarah Tishler and summer associate Will Courtney who enlisted additional summer associates to compile research and other data comprising key statistics referenced in the brief.

“If Dreamers lost the deferred action status granted under the DACA guidelines, it would result in a $460 billion loss to the United States’ gross domestic product over the next decade, more than $6 billion in annual economic activity to the State of Texas, and a loss of more than $2 billion of annual economic activity in the Greater Houston Region,” the brief notes.

The brief argues that Dreamers contribute mightily to the Texas economy as consumers, taxpayers and entrepreneurs. It also notes that DACA recipients are valued employees for businesses throughout Texas and that these businesses have made significant investments in training Dreamers. This last point, in particular, hit close to home for V&E, whose employees include DACA recipients.

“These individuals are part of the fabric of the Texas economy,” Cardenas said. “The disruption that would occur if the program were taken away would be overwhelmingly significant.”

Members of Texas’ business community agreed. Thanks to Cardenas’ efforts, 24 Amici, including Southwest Airlines, United Airlines, and Chambers of Commerce from around the state, signed the brief.

Spurring a reaction from the Texas Attorney General

The brief, filed on July 21, appeared to have an impact. On Aug. 3, Texas Attorney General Ken Paxton issued a press release claiming that the brief actually bolsters his argument by stating DACA deprives some citizens of jobs.

“He tried to turn the Amicus brief into something in the State’s favor, stating that the filing shows that DACA recipients are taking jobs away from Texans,” Leatherbury said. “That’s not what our brief said. Our brief demonstrated that that employers cannot find enough qualified employees to fill critical jobs, including in the health care and education sectors. These jobs would not otherwise be filled without employing some of these DACA recipients.”

A surprise ruling

On Aug. 31, Judge Hanen issued what was for some a surprising ruling. While in 2015, in a similar case seeking to end a program comparable to DACA, Judge Hanen had granted the motion, this time he ruled in the other direction.

His reasoning: The program in question in 2015, called Deferred Action for Parents of Americans, had yet to be implemented at the time that it was challenged. In contrast, DACA has been around since 2012. As a result, Dreamers have grown dependent on its existence and ending it abruptly could cause tremendous harm.

To what extent did the judge consider the Amicus brief in making his decision?

“That’s hard to unpack,” Leatherbury said. “The grounds that the court used to deny the state’s request for a preliminary injunction relief were certainly grounds that we addressed very directly in our brief,” he said.

“The fact that the States waited six years to challenge the program, and the balance of the equities, which is an important ground when you’re talking about preliminary injunctive relief — those were certainly issues that we directly addressed and concentrated on in our brief,” he added.

For V&E and its clients, Judge Hanen’s decision was certainly cause for celebration, though the hard work is far from done. While he kept DACA alive temporarily, his opinion notes his displeasure with the program.

“Our clients are certainly happy that this particular battle has been won,” Antos-Fallon said. “But they are searching for a lasting solution.”

An enduring commitment to help

As the case moves ahead, V&E remains committed to helping DACA recipients. “We will continue our involvement on behalf of our clients,” Cardenas said.

V&E’s pro bono efforts in support of DACA have included counseling individuals applying for the program. Recently, Cardenas has been in close contact with one of these individuals whose application was pending and had been worried about what his future would look like if the program abruptly shut down. The client’s mood quickly changed when he learned about the ruling and the approval of his deferred action was granted the following week.

“He was ecstatic,” Cardenas said. “He could have been denied the opportunity to get DACA. He is now enrolled in college, working, paying taxes and contributing to the economy.”

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.