July 28, 2017

Brownsville, TX - A threat by the State of Texas to amend a lawsuit to include a belated challenge to the Deferred Action for Childhood Arrivals (DACA) initiative should be thrown out on the grounds that the original lawsuit is not related to DACA, according to a motion filed in federal court today.

The motion, filed in U.S. District Court for the Southern District of Texas in Brownsville by MALDEF (Mexican American Legal Defense and Educational Fund) and the law firm O'Melveny & Myers LLP, requests that the court block any effort by Texas to amend its 2015 lawsuit against the DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) initiative to include a challenge to DACA. DAPA, a 2014 Obama Administration initiative, was barred from implementation by the Brownsville court after Texas and 25 other states sued to stop it, and the initiative never went into effect.

On June 15 of this year, the Department of Homeland Security issued a memorandum officially rescinding DAPA. That action, according to the motion filed today, renders the lawsuit moot and it therefore cannot be amended. "The Court should not countenance Plaintiffs' threatened attempt to sneak an attack on DACA into this lawsuit and should dismiss the case as moot without leave to amend," the motion reads.

"Texas' lawless attempt to revive this dead lawsuit by converting it from a challenge to the now-rescinded DAPA into an assault on the highly successful five-year-old DACA initiative is the most ill-advised experiment in revivification since Frankenstein's monster," said Thomas A. Saenz, MALDEF president and general counsel. "The state's lawyers should abandon their mad scientists' laboratory and attend to the needs of Texas, which has immeasurably benefited from DACA."

On June 29, Texas sent a letter to U.S. Attorney General Jeff Sessions threatening to amend the DAPA lawsuit if DACA is not rescinded by the Trump Administration by Sept. 5. During the 2015 federal court hearing seeking a preliminary injunction to block DAPA, Texas made it clear that it was not challenging the 2012 DACA initiative and, the motion says, the state cannot amend its lawsuit to do so now.

"Plaintiffs never challenged the 2012 DACA initiative, and in fact they affirmatively represented to this Court that they were ‘not challenging the DACA program'," the motion reads. "Plaintiffs should not now, after nearly three years, be allowed to surprise the Federal Defendants, the Intervenors, and the nation by amending their complaint to completely change the nature of the case. If Plaintiffs truly wish to challenge the DACA initiative, they should be required to assert those claims in a new lawsuit."

"We are proud to have been able to work with MALDEF in fighting to preserve the DACA initiative from Texas' threatened challenge," said Gabriel Markoff, an associate attorney at O'Melveny.

Read the motion here.

Founded in 1968, MALDEF is the nation's leading Latino legal civil rights organization. Often described as the "Latino Legal Voice for Civil Rights in America" MALDEF promotes social change through advocacy, communications, community education, and litigation in the areas of education, employment, immigrant rights, and political access. For more information on MALDEF, please visit:

Copyright 2009 MALDEF — Mexican American Legal Defense and Educational Fund