Tatiana Lipsey, KLJ Online Content Manager
DACA, DAPA, and Executive Action have been in the news a lot lately. While Deferred Action for Childhood Arrivals (DACA) is nothing new1, on November 20, 2014, President Obama announced that the executive branch, in coordination with the Department for Homeland Security (DHS) would be taking many steps to “fix the broken immigration system.”2 Part of this effort included expanding existing DACA, beginning February 18, to include more immigrants and increase the period of deferred action and work authorization from two to three years.3 The effort also included the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) set to begin in May.4 The President’s announcement has received a lot of attention, and not surprisingly, legal challenges.
State of Texas, et al v. United States 5 was filed in federal district court in Brownsville, Texas, last December by twenty-six states. The suit challenged the above two aspects of the immigration initiatives that President Obama announced on November 20.6 The states argue that the programs are not lawful and will cause economic injury to states that must finance the education, protection, and issuance of driver’s licenses to future recipients of DACA or DAPA.7
On February 16, 2015, the district court issued a preliminary injunction temporarily blocking the expansion of DACA and the implementation of DAPA.8 The ruling did not address the constitutionality of the programs. Rather, the narrow holding for the injunction focused on the whether the federal government violated procedural requirements under the Administrative Procedure Act by not following the formal rulemaking procedures in creating these initiatives.9 The court decided that the government had failed to follow appropriate procedure.10 DHS has stated that it will challenge the decision and believes that there is legal authority for the action.11
It could take months, or even years, for a final decision to be reached in the federal district court. In the meantime, the Department of Justice (DOJ) has requested that the Fifth Circuit Court of Appeals lift the injunction and allow expanded DACA and DAPA to go forward while the underlying lawsuit proceeds.12 Oral arguments on the emergency stay of the injunction were scheduled for April 17.13
If the injunction is lifted, DHS could immediately begin implementing both programs while the lower court case continues. However, if either side appeals to the Supreme Court, which is likely, it could take until sometime next year for a decision on the future of expanded DACA and DAPA to become clearer. This is a case that many immigration scholars, lawyers, and undocumented immigrants will be following closely. The case will undoubtedly have a significant impact whether the executive actions are ultimately found lawful or not.
1 DACA was created June 15, 2012, as a matter of prosecutorial discretion. See Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf. The program provides relief from removal and work authorization for a period of two years, which can then be renewed as long as the program remains in existence. Current guidelines state that DHS has the discretion to terminate DACA at any time, with or without a Notice of Intent to Terminate. Ilissa Mira, What to Expect When Expanded DACA Opens Again, CLINIC, https://cliniclegal.org/resources/articles-clinic/what-expect-when-expanded-daca-opens-again.
2 Video: Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014), available at https://www.whitehouse.gov/issues/immigration/immigration-action#.
3 Fixing Our Broken Immigration System Through Executive Action – Key Facts; Department of Homeland Security, http://www.dhs.gov/immigration-action.
5 State of Texas, et al v. United States of America, et al., No. 1-14-CV-254 (D. Texas Feb. 16, 2015)(order granting preliminary injunction). Available at http://www.txs.uscourts.gov/notablecases/1-14-cv-254_145X20977588_0.pdf.
8 Existing DACA, as it has existed since 2012, and renewals thereof, have not been affected by the injunction.
10 State of Texas v. United States, No. 1-14-CV-254 at 123.
11 Statement by Secretary Jeh C. Johnson Concerning the District Court’s Ruling Concerning DAPA and DACA (Feb. 17, 2015), available at http://www.dhs.gov/news/2015/02/17/statement-secretary-jeh-c-johnson-concerning-district-courts-ruling-concerning-dapa.