courthouse pillars in the sun
courthouse pillars in the sun

On April 17, 2015, the Obama Administration argued its case against Texas on appeal of US District Court Judge Andrew S. Hanen’s temporary injunction, which has halted Obama’s expanded Executive Action programs that were set to go into effect beginning February 18, 2015. As of May 7, 2015, there is still no decision from the 5th Circuit on the status of the Deferred Action for Parental Accountability (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs, however, much speculation and misinformation has been circulating in the press. Attorneys following the case expect a decision within the next two weeks, which may ultimately lead to a showdown at the US Supreme Court.

The case began when a Texas-led coalition of 26 states filed a lawsuit to enjoin the implementation of Obama’s expanded Executive Actions on Immigration last November. The Plaintiffs, whose basis for standing in the lawsuit is murky at best, complained of unquantified financial burdens that would result from the granting of deferred action status and work authorization to DAPA and DACA II applicants. Nonetheless, on February 16, 2015 U.S. District Judge Hanen, a George W. Bush appointee, granted a temporary injunction to stop the DAPA and DACA II programs from taking effect.

The Obama Administration then filed an expedited appeal to the 5th Circuit Court of Appeals, which was argued and taken under submission 3 weeks ago. A decision from the 5th Circuit is imminent. In the meantime, Judge Hanen issued two orders refusing to lift his own injunction in the Texas case and the 5th Circuit issued a ruling in a similar case involving the State of Mississippi on April 7, 2015. In the Mississippi case, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit unanimously ruled that several immigration agents and the state of Mississippi lacked legal standing to sue over the 2012 DACA program because evidence that the agents or the state would be harmed was “too speculative.”

While the ruling in the Mississippi case should support the Obama Administration’s arguments in the Texas case, Judge Hanen’s injunction was also based on an alleged technical violation of the Administrative Procedure Act (APA) which requires that agencies give a 60-day “Notice and Comment” period to allow for interested parties to raise concerns over any change in substantive rules and regulations. Of course, no challenge was raised by any State to the 2012 DACA Program based on “Notice and Comment,” and the 2014 DAPA and DACA II are based on the same, pre-existing regulations, for which no new rule-making was required for DACA to take effect.

For those wondering what the argument is all about, the USCIS had announced that it would begin accepting applications for Deferred Action for Childhood Arrivals (DACA) under the expanded guidelines the President announced last November, on February 18, 2015. Under “DACA II,” a person who arrived in the US while under the age of 16 on or before January 1, 2010 may apply for deferred action and a work permit, as long as otherwise qualified.

The first of the new executive actions that would have gone into effect this year, the DACA II program expands the population of eligible applicants for deferred action and work authorization to include young people who came to this country before turning 16 years old who have been present in the US since January 1, 2010, and extends the period of DACA validity and work authorization from two years to three years.

DACA II eliminates the age “ceiling” restriction of the first DACA, which made ineligible any person who had already reached the age of 31 as of the program’s effective date. Under DACA II, the age of the applicant at the time of filing is not relevant, only the age at which the person first arrived in the US is important. USCIS anticipates that it will receive thousands of applications as soon as the filing period commences on February 18, 2015.

Somewhat more expansive is the DAPA Program, Obama’s Executive Actions will allow also allow parents of U.S. citizens and lawful permanent residents born on or before November 20, 2014, who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years in a new Deferred Action for Parental Accountability (DAPA) program, provided they pass required background checks. This DAPA program would have become effective in May 2015, but for the injunction and appeal.

Much is now riding on the 5th Circuit Court of Appeals decision in the Texas case. Should the 5th Circuit rule in favor of the Obama Administration’s executive authority, the DAPA and expanded DACA programs should go into effect shortly, but Texas et. al. will likely seek review at the US Supreme Court. Conversely, the Administration will surely pursue the matter to the US Supreme Court if a ruling is issued against the DAPA and DACA II programs. This story is far from over.