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Temporary Injunction Stalls Implementation of "Expanded" DACA and DAPA

In the case of State of Texas, et al. v. United States of America, this week, United States District Court Judge Andrew S. Hanen issued his long-awaited ruling on the plaintiffs’ Motion for Temporary Injunction. Only the outcome wasn’t what immigration lawyers, like myself, and their clients had hoped for or expected.

Recall that 26 states had filed a lawsuit challenging Department of Homeland Security Secretary Jeh Johnson’s actions last November to expand the parameters of the Deferred Action for Childhood Arrivals (DACA) program and to create a new program authorizing, on a case-by-case basis, deportation deferrals and work permits for parents of U.S. citizens and lawful permanent residents, also known as Deferred Action for Parental Accountability (DAPA). The plaintiffs allege that Secretary Johnson’s actions violate the Take Care Clause of the U.S. Constitution and the Administrative Procedures Act (APA). Defendants contend that plaintiffs are without standing to challenge Secretary Johnson’s actions and that their claims lack merit. In somewhat of a surprise, Judge Hanen granted plaintiffs’ motion, finding that plaintiffs had met the legal standard for obtaining a temporary injunction based on defendants’ alleged failure to comply with the APA.

What does Judge Hanen’s order granting plaintiffs’ motion for temporary injunction mean for the 4 or 5 million undocumented persons whose lives would be changed by “expanded” DACA and DAPA? It means that these persons cannot now apply for a 3-year deferral of deportation and work permit because Department of Homeland Security is temporarily restrained from accepting and considering applications. The injunction is “temporary” in the sense that it is not a final disposition of the merits of plaintiffs’ lawsuit. A higher court, such as the Fifth Circuit Court of Appeal based in New Orleans, Louisiana, or the U.S. Supreme Court, could hear an appeal and reverse the order. Defendants could also eventually prevail in United States District Court by defeating plaintiffs’ claims at trial, which would negate the temporary injunction.

The ruling granting plaintiffs’ motion for temporary injunction does not affect the DACA program which came into being on June 15, 2012 pursuant to the actions of then-Homeland Security Secretary Janet Napolitano. Although Department of Homeland Security will not for the moment be able to accept applications under “expanded” DACA or DAPA, it is not prohibited from receiving and approving regular DACA applications, including initial and renewal requests, from persons who qualify under the June 15, 2012 guidelines. Another important consideration is that the other executive actions announced by Secretary Johnson on November 20, including that establishing and implementing Department of Homeland Security priorities for the apprehension, detention and removal of persons unlawfully present in the Untied States, are not restrained by the Court’s order and remain in effect.

In light of Judge Hanen’s ruling, what is the future of the “expanded” DACA and DAPA programs? The immediate effect is temporary paralysis of an important part of the government’s corpus of prosecutorial discretion. Although the U.S. government has expressed its view that its actions are within its legal authority, few would admit they saw this coming. While it seems almost certain that a request for an emergency stay of and/or an appeal from the Judge’s order will be filed, the prospect for obtaining near term relief from the order seems less certain. The reality is that no person can apply under “expanded” DACA or DAPA unless and until the temporary injunction is lifted and Department of Homeland Security announces that it will start accepting applications.

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