TBA Law Blog

Posted by: Christy Gibson on Jun 4, 2015

By:  TBA’s Immigration Law Section

On May 26, 2015, the U.S. Court of Appeals for the 5th Circuit refused the Obama administration’s request for an emergency stay of Judge Andrew Hanen’s February 2015 temporary injunction halting both the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parental Accountability (DAPA) program that extends deferred action and employment authorization benefits to qualifying parents of U.S. citizens and lawful permanent residents.

This action means the Obama administration and the USCIS remain unable to proceed with DAPA and expanded DACA.  Two judges of the 5th Circuit found the Obama administration was “unlikely to succeed” in establishing that the 26 plaintiff  states lack a sufficient injury, or “standing,” to challenge the President’s actions. The third judge found that the question of the appropriateness of DAPA and DACA was a political one that the judiciary should take no role in. 

This decision does not mean that the 5th Circuit has agreed with the plaintiffs who sought and obtained the injunction, or with the lower court’s rationale for issuing the injunction. The decision does mean that implementation of the DACA expansion and DAPA programs cannot move forward unless/until the injunction is later lifted or the Obama Administration prevails on the merits. The Administration appears to have decided to not appeal this decision; rather, it has decided to await the 5th Circuit’s hearing on July 10, 2015 on the merits of the injunction. At issue will be whether the stay was legally justified to stop the implementation of DAPA and expanded DACA while the parties litigate the legality of the President’s executive actions under the Administrative Procedures Act.