Litigation Over American Immigration
Injunction on Executive Action Suspends Expanded DACA Start Date Indefinitely
Legal action being taken on President Obama’s Executive Action of November 20, 2014 is now at the stage of an injunction in place against the expansion of Deferred Action on Childhood Arrivals (“Expanded DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”).
The injunction was ordered by a federal judge in Texas based on concerns over compliance with the Administrative Procedure Act (“APA” – this is like a rhyming joke, these acronyms). The Expanded DACA/ DAPA supporter American Immigration Lawyers Association ("AILA") of which I am a member seems pleased to some extent by the judge’s reasoning since he is not holding back Expanded DACA and DAPA on constitutional grounds.
Here’s the quick timeline on the litigation that led to the current injunction so far:
November 20, 2014: Expanded DACA and DAPA programs announced by President Obama as his “Executive Action” on Immigration. Expanded DACA will broaden the number of undocumented foreign nationals that can register and be approved as a non-priority for removal from the United States. Expanded DACA will increase to three years from two the duration of the employment authorization document (“EAD”) that approved applicants can obtain. DAPA is introduced as a new program that could give EADs to up to 4 million undocumented.
December 3, 2014: 17 states or state governors file a lawsuit against the US government and representatives of the Department of Homeland Security in Texas vs. United States. The states claim that Obama engaged in law making that is reserved to the Congress harping on Obama’s rhetoric that he changed the law. The states blame the original DACA action announced in June 2012 for encouraging refugees to come to the United States from Central America and Mexico causing a humanitarian crisis in the US. The states call the latest Executive Action “rule” making and as such in need of a notice and comment period under APA, 5 USC §553. There was not notice and comment period, so the Executive Action is unlawful agency action. The states also say that the president is breaching his constitutional duty to “take Care that the Laws be faithfully executed.” US Constitution, Art. II § 3, Cl. 5.
December 24, 2014 The Defendants file their brief.
December 29, 2014 Friends of the Court in favor of Expanded DACA file a brief. They include: AIC, AILA, NIJC, NILC, the Service Employees International Union, the Southern Poverty Law Center and United We Dream. They state that the injunction would harm the economy and individuals.
February 16, 2015 The injunction is granted. Federal Judge Andrew Hansen finds that at least one Plaintiff, the state of Texas, has all the elements to maintain a lawsuit and obtain in injunction. The Defendants were enjoined from implementing all aspects of DAPA for not complying with the APA. They were likewise enjoined regarding Expanded DACA.
Standing Found for at Least One Plaintiff, the State of Texas. The judge found that Texas stands to suffer direct damage from the implementation of DAPA, and so it can pursue this case in federal court. Texas will suffer an injury proximally caused by the US government, and a favorable remedy from the court would prevent occurence of that injury.
February 18, 2015 USCIS would have begun taking applications for Expanded DACA. This date is now indefinitely deferred due to the injunction.
February 24, 2015 The US Government request a stay of the injunction.
Judge Hansen has not shown willingness to rush a decision on that request according to the online publication Politico. The US Department of Justice in response has said that they will request that the case be moved to a higher court. The next court would be the Fifth Circuit Court of Appeals in New Orleans, Louisiana. http://politi.co/1zllJRf