U.S. District Judge Andrew Hanen. Photo: Esmer Olvera

In a case in which the state of New Jersey became an intervenor on behalf of the federal government earlier this year, a federal judge in Texas refused to issue an injunction against the Obama-era Deferred Action for Childhood Arrivals program, though he hinted he might ultimately rule against the program’s legality.

In declining to issue a preliminary injunction against DACA, U.S. District Judge Andrew Hanen of the Southern District of Texas on Aug. 31 said he believed the plaintiff states have shown a likelihood to succeed on their claims that DACA violated the Administrative Procedure Act. But he found the states brought the case after the government had granted deferred action to millions of people over several years.

“The plaintiff states have put forth what would otherwise be sufficient proof of irreparable damage and have shown that they have no other viable legal remedy. Nevertheless, the court finds that the plaintiff states cannot prevail on the legal element of irreparable harm due to their delay in pursuing the claims they now bring concerning DACA,” the 117-page opinion read.

The group of seven conservative states, led by Texas, sued to end DACA in May.

The next month, New Jersey was granted intervenor status, defending the interests of the federal government.

New Jersey Attorney General Gurbir Grewal said in a statement: “This is an important victory for Dreamers in New Jersey and across the country. The State of Texas and its allies were seeking to immediately strip Dreamers of their protections and expose them to risk of deportation. Today’s decision keeps DACA in place and heads off what would have been a catastrophic outcome. I am incredibly proud of New Jersey’s legal team for this victory and we will continue doing everything we can to push back against those who seek to remove Dreamers from this country.”

Texas Attorney General Ken Paxton appeared to welcome the ruling, seizing on the judge’s finding that DACA likely violated the Administrative Procedure Act. DACA was created by executive action in 2012.

“We’re now very confident that DACA will soon meet the same fate as the Obama-era Deferred Action for Parents of Americans program, which the courts blocked after I led another state coalition challenging its constitutionality,” Paxton said in a statement.

Hanen, a George W. Bush appointee, blocked the implementation of the Obama administration’s Deferred Action for Parents of Americans program, a sister program to DACA, in 2015. A three-judge panel for the U.S. Court of Appeals for the Fifth Circuit upheld his ruling, while the Supreme Court deadlocked in the case, leaving the lower court decision in place.

In his Aug. 31 opinion, Hanen criticized DACA, but stopped short of issuing an injunction. In 2015, he wrote, the injunction of DAPA, as well as an expanded version of DACA, “was warranted to stop the implementation.”

“Here, the egg has been scrambled,” Hanen wrote. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of the country.”

“This court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the president will finally get their job done,” his opinion read.

The judge, who also found that the states have made a “clear showing of irreparable injury,” also entered an order allowing them to file an interlocutory appeal.