by Shelley Starzyk*

Since President Obama’s announcements regarding new immigration programs, there has been federal litigation and much discussion regarding the new enforcement policies and programs. This article will provide a brief overview of some of these developments and the anticipated next steps in litigation.

The President announced executive actions on Immigration on November 20, 2014, including an expanded program for Deferred Action for Childhood Arrivals (“expanded DACA”), a new discretionary program for Deferred Action for Parents of American Citizen and LPR children (“DAPA”).[i] It is estimated that these new discretionary programs would provide relief to over an estimated 4 million individuals. That same day the Department of Homeland Security (“DHS”) issued a memo outlining new enforcement priorities for Immigration and Customs Enforcement (“ICE”).

Litigation Surrounding the Implementation of Expanded DACA and DAPA

As you know, the implementation of the expanded DACA and DAPA programs is on hold due to federal litigation. On December 3, 2014, the State of Texas along with other states brought suit against the U.S. government in the Southern District of Texas federal court in a case entitled Texas et al. v. United States. The Plaintiff States, which now number 26 (including Tennessee), sought to block President Obama’s Executive Actions for expanded DACA and DAPA. The Plaintiffs argued that the new proposed programs violated the Administrative Procedures Act (“APA”) and the Constitution.

On February 16, 2015, District Judge Andrew Hanen entered a preliminary injunction to stop President Obama’s Executive Actions for expanded DACA and DAPA.[ii] Judge Hanen’s preliminary injunction ruling is structured to block all federal government action on expanded DAPA and DACA.

While this temporary injunction has delayed the expanded DACA and DAPA programs, it may not hold up under further scrutiny, or in a different court. Prior to issuing the DAPA and DACA guidance, the Obama administration vetted this new program through their legal counsel. This is not the first action of its kind for this administration, as the original DACA program was implemented in 2012. Furthermore, a previous challenge to that 2012 DACA program was dismissed for lack of jurisdiction, allowing that program to move forward.[iii]

While Judge Hanen’s 123 page opinion in support of the preliminary injunction raises issues under procedural process and APA, most of the opinion identifies grounds for standing. In the preliminary injunction, the Court made an initial finding of standing under the APA on the State of Texas’ argument that they would suffer economic injury if it had to issue drivers licenses to all new expanded DACA or DAPA recipients.[iv] This appears to be the main basis for the Court finding standing. The Court also explores the idea that Plaintiffs have standing under the APA because of the federal government’s abdication of enforcing immigration laws. The Court finds that the Administration’s proposed DAPA and DACA is essentially the federal government opting out of enforcing the immigration laws. The Government contests this finding and asserts that it is a lawful exercise of discretion within the enforcement of their laws. The Judge did not rule on the constitutional issues raised in the complaint.

On February 23, 2015, the federal government sought an emergency stay of this preliminary injunction and indicated that if Judge Hanen did not rule quickly they would appeal to the Fifth Circuit Court of Appeals. On March 12, 2015, the Justice Department filed for an Emergency Stay with the Fifth Circuit after Judge Hanen would not set a hearing date until March 19 to hear all pending motions, including the Emergency Stay request.

The expectation of many immigration attorneys is that Judge Hanen’s ruling will be overturned and the expanded DACA and DAPA programs will eventually move forward. This expectation was strengthened by the U.S. Supreme Court’s March 9, 2015 decision, Perez v. Mortgage Bankers Association, where the Court held the U.S Department of Labor did not need to follow the notice and comment procedures under the APA in issuing “Interpretive” rules.

The November 20, 2014 ICE Priorities Memo is still in Effect

After the February 16, 2015 Federal District Court injunction, DHS Secretary Jeh Johnson announced DHS would suspend DAPA and expanded DACA programs.[v] While Secretary Johnson noted his vehement opposition to the Court’s ruling, he stated that DHS will respect this injunction and pending outcome of this litigation. Therefore, ICE could no longer consider individuals for expanded DACA or DAPA when evaluating enforcement priorities. In this announcement, DHS Secretary Johnson also specifically noted that this injunction did not affect the November 20, 2014 Priorities Memo, and that DHS would continue to follow this memo with respect to immigration enforcement. Interestingly, during the last weeks of February 2015, some ICE offices reportedly acted without following the November 2014 Priorities Enforcement Memo. In response, ICE has issued further guidance, affirming that the District Court injunction does not have any bearing on this new enforcement memo. Therefore, the ICE November 20, 2014 Priority Enforcement Memo remains as the standard policy guidance for immigration enforcement.

The Takeaway

Pending further litigation, many immigration attorneys are advising hopeful expanded DACA and DAPA clients to prepare their documentation and filing fees for these programs. Given the points of the initial injunction, and the previous actions of the executive branch similar to this one, it is appears there is a strong chance the Court’s injunction will eventually be overruled.

*Shelly Starzyk is a solo practitioner and practices immigration law. She is a graduate of Case Western Reserve University School of Law. Ms. Starzyk may be reached at shelley@starzyklawpllc.com or (615) 669-4206.