TEXAS v. UNITED STATES, the Lawsuit Challenging DAPA and DACA Expansion Updates
January 25, 2017
On Wednesday January 25, 2017, President Trump signed an executive order, "Enhancing Public Safety in the Interior of the United States,"
announcing a massive expansion in interior immigration enforcement. On February 20, 2017, DHS Secretary John Kelly issued a memorandum outlining an implementation
plan for that Executive Order titled: "Enforcement of Immigration Laws to Serve the National Interest.
The Memorandum leads with a notice that all "existing conflicting directives, memoranda , or field guidance" regarding immigration enforcement and priorities for removal are immediately rescinded, to the extent of conflict, and named specifically the November 20, 2014 DHS memoranda "Policies for the Apprehension, Detention and Removal of undocumented Immigrants" and "Secure Communities." The Memorandum also states that the June 15, 2012 DACA memorandum and November 20, 2014 DACA +/DAPA memorandum are NOT rescinded.
Will DACA and DAPA ever be implemented?
The Supreme Court is not likely to render a decision until 2018.
June 23, 2016
Supreme Court deadlocks on Immigration, 4-4 ruling, keeping injunction in place. The tie means the court did not rule either way, but instead let
stand the lower court ruling.
United States v. Texas Oral Argument
January 19, 2016
The U.S. Supreme Court on Tuesday agreed to hear the federal government’s challenge to a block on President Barack Obama’s executive actions on immigration, paving the way for a high-profile immigration ruling early this summer during the heat of the campaign season.
Facing inaction from Congress on immigration, Obama announced that he would to take executive action on immigration reform in June 2014.
Four months later, he unveiled the new policies, which would expand a program for immigrants who entered the U.S. as children and create a similar program for immigrant parents. The programs could affect an estimated 4.4 million people and would allow immigrants to defer deportation and apply for work permits for three-year periods.
But a slew of states soon sued over the initiatives, ensnaring them in court proceedings and further jeopardizing Obama’s immigration legacy.
November 11, 2015
President Barack Obama’s pledges to overhaul the nation’s immigration policies now hinges on how fast, if at all, the Supreme Court considers the main legal challenge to those reforms.
November 9, 2015
The Fifth Circuit affirmed the district court's February 16, 2015, order granting a preliminary injunction against DAPA and expanded DACA, finding that the district court did not abuse its discretion in granting the injunction pending resolution of the merits. The court held that the 26 states challenging DAPA have standing, have established a substantial likelihood of success on the merits of their procedural and substantive APA claims, and have satisfied the other elements required for an injunction. In a 53-page dissent, Judge Carolyn King wrote that she would dismiss this case as non-justiciable, because the immigration enforcement prioritization decisions embodied in the DAPA memorandum have been delegated to the Secretary of Homeland Security by Congress. The dissent also states that the evidence in the record clearly shows that the injunction cannot stand: “[T]he district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny.”
September 21, 2015
Following the court's instruction, the government submitted a September 2015 status report concerning the 11 identified individuals whose invalidated three-year Employment Authorization Documents (EADs) were not yet retrieved or otherwise accounted for at the time of the August 19, 2015, hearing, even though their DACA status and employment authorization had been terminated. The report states that USCIS has now accounted for all 11 of those outstanding EADs, either by securing the return of the EAD itself, or by obtaining a good cause certification from the individual.
July 10, 2015
DACA Recipients with Three-Year EADs Issued After the Injunction Must Return EAD by July 17, 2015
In response to the injunction in Texas v. United States, USCIS is requiring the approximately 2,000 individuals to whom 3-year EADs were issued after the injunction to return their EADs to USCIS.
Note that this does not affect EADs that were issued before the injunction.
USCIS has sent letters to affected DACA recipients. The first letter instructs the recipient to return the 3-year EAD and makes it clear that only 3-year EADs issued after February 16, 2015 need to be returned to USCIS. The second letter is being sent to those affected individuals who have not yet returned their 3-year EADs, stating "USCIS must receive your EAD by 7/17/15. Failure to return the invalid EAD without good cause may affect your deferred action and employment authorization."
On July 7, 2015, Judge Hanen in the Texas v. United States litigation issued an Order setting a hearing for August 19, 2015, to discuss the approximately 2,000 three-year EADs that were issued after the injunction was issued. The Order states, "this Court expects the Government to be in full compliance with this Court's injunction. Compliance as to just those aliens living in the Plaintiff States is not full compliance."
DOJ filed an Advisory with Judge Hanen in the Texas v. United States litigation on July 9, 2015, that stated:
“The Government recognizes the import of the Court’s concerns regarding the progress of the Government’s efforts relating to the approximately 2,000 post-injunction issuances. In addition to other measures that are underway, the three-year DACA grants and EAD cards have been invalidated for all of these individuals and changed to two years; the SAVE database that states use to verify eligibility for driver’s licenses and other state benefits has been updated to reflect the two-year authorizations for all of these individuals; and USCIS has now sent two rounds of individualized letters demanding the return of the three-year EAD cards and warning recipients that a failure to return the card could affect their deferred action and employment authorization. The Government has already secured return of nearly 1200 of these three-year EADs. We are now executing additional steps to secure return of the remaining three-year EADs”
June 12, 2015
The 5th Circuit Court of Appeals will hear oral arguments on July 10 in New Orleans in the Obama administration’s attempt to lift a preliminary injunction from U.S. District Judge Andrew Hanen of Texas, which blocked several executive actions from taking effect. Click here.
May 26, 2015
The Fifth Circuit refused to lift a temporary injunction on expanded DACA and DAPA. DOJ had asked the Fifth Circuit to reverse Judge Hanen’s decision to temporarily block implementation while the lawsuit worked it ways through the courts. The decision states, “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”
April 6, 2015
The mayors of New York, Los Angeles, and 71 additional cities and counties filed an amicus brief with the 5th Circuit, in support of the federal government’s bid to reverse an injunction on expanded DACA/DAPA
109 immigration law professors file an amicus brief with the 5th Circuit stating, “Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and expansion of Deferred Action for Childhood Arrivals (“DACA”) are well within the Secretary of the Department of Homeland Security’s (the “Secretary”) express statutory authority to establish national immigration enforcement policies and priorities as well as the Secretary’s broad discretion in enforcing United States immigration laws …. The district court’s findings to the contrary should be rejected, and its grant of a preliminary injunction should be reversed.”
The American Immigration Council, National Immigration Law Center, Service Employees International Union, and other civil rights, labor, and immigration advocacy groups filed an amicus brief in support of the appellant seeking reversal of the preliminary injunction.
15 states and the District of Columbia, as well as 181 members of Congress also filed an amicus brief in support of appellant.
The Justice Department, on March 12, 2015, filed an emergency motion for a stay pending appeal, with attachments, in Texas v. United States, requesting that the Fifth Circuit Court of Appeals stay the district court's nationwide preliminary injunction in its entirety or, at minimum, stay it with respect to implementation in states other than Texas, or states that are not parties to the suit.
March 12, 2015
Fourteen states and the District of Columbia filed an amicus brief with the Fifth Circuit in support of motion to stay district court preliminary injunction.
March 9, 2015
Judge set a hearing date of March 19, 2015, and stated: Due to the seriousness of the matters discussed therein, the Court will not rule on any other pending motions until it is clear that these matters, if true, do not impact the pending matters or any rulings previously made by this Court." As such, the Obama administration and the DOJ are now free to take its appeal to the Fifth Circuit Court of Appeals.
March 5, 2015
Plaintiffs in the case moved for early discovery.
March 4, 2015
DOJ filed an advisory, stating that “Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by close of business on Monday, March 9, 2015, Defendants may seek relief from the Court of Appeals in order to protect their interests.”
March 3, 2015
DOJ filed an advisory stating that: "Out of an abundance of caution, however, Defendants wish to bring one issue to the Court's attention. Specifically, between November 24, 2014 and the issuance of the Court's Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year EADs for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of three-year periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance."
FEBRUARY 28, 2015 CONGRESS PASSES ONE-WEEK DHS FUNDING BILL
Late Friday night, just before the DHS funding was set to expire at midnight, the House passed a Continuing Resolution keeping the department open for another week. With Democratic and Republican leadership joining together the bill passed 357-60 in the House matching a bill that the Senate passed earlier in the evening. President Obama signed the bill just before midnight. The one-week bill sets up Washington for a repeat of this past week's bruising battle over the President's Executive Action plans.
EMERGENCY EXPEDITED MOTION TO STAY EXPANDED DACA/DAPA PRELIMINARY INJUNCTION
The federal government filed an emergency expedited motion on the preliminary injunction entered on 2/16/2015 concerning expanded DACA and DAPA, requesting that the court stay, pending appeal, its 2/16/2015 Order, or in alternative, stay its Order beyond application in Texas.
DHS WILL NOT BEGIN ACCEPTING EXPANDED DACE APPLICATIONS TOMORROW, FEBRUARY 18, 2015
FOR IMMEDIATE RELEASE
DHS announced that it will not accept requests under the expanded DACA initiative tomorrow, February 18, 2015, as originally planned due to the federal district court decision to temporarily enjoin the implementation of DAPA and expanded DACA. Until further notice, DHS has also suspended plans to accept requests for DAPA. However, DOJ will appeal the temporary injunction, and DHS says that it expects it will ultimately prevail in the courts and will implement DAPA and expanded DACA once it does.
See here the Statement by Secretary Jeh C. Johnson Concerning the District Court's Ruling Concerning DAPA and DACA
PRESIDENT OBAMA’S EXECUTIVE ACTION, NOVEMBER 20, 2014
FOR IMMEDIATE RELEASE
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New York, NY – As an immigration lawyer, I welcomed President Obama’s executive action which offer some protection for the immigrant communities. Acting within his legal authority, the President is taking an important step to fix our immigration system.
As an immigration attorney I see the results of our broken system every day and in the absence of Congressional action, the President had to act. While a lot of details are still waiting to be filled in, I know that many of these changes will make a real impact.
These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporary stay in the United States without fear of deportation.
Three critical elements of the President’s executive actions are:
•Cracking Down on Illegal Immigration at the Border: President’s actions increase the chances that anyone attempting to cross the border illegally will be caught and sent back. Continuing the surge of resource that effectively reduced the number of unaccompanied children crossing the border illegally this summer, the President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration. •Deporting Felons, Not Families: The President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members, and recent border crosser at the top of the priority list. •Accountability: Criminal Background Checks and Taxes - The President is also acting to hold accountable those undocumented immigrants who have lived in the U.S. for more than 5 years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.
The President’s action will also streamline legal immigration on boost our economy and will promote naturalization of those who qualify.
Cracking Down on Illegal Immigration at the Border
Under the Obama Administration, the resources that the Department of Homeland Security (DHS) dedicate to security at the Southwest border are at an all-time high. Today, there are 3,000 additional Border Patrol agents along the Southwest Border and our border fencing, unmanned aircraft surveillance systems, and ground surveillance systems have more than doubled since 2008. Taken as a whole, the additional boots on the ground, technology, and resources provided in the last six years represent the most serious and sustained effort to secure our border in our Nation’s history, cutting illegal border crossings by more than half.
And this effort is producing results. From 1990 to 2007, the population of undocumented individuals in the United States grew 3.5 million to 11 million people. Since then, the size of the undocumented population has stopped growing for the first time in decades. Border apprehensions – a key indicator of border security – are at lowest level since the1970s. This past summer, the President and the entire Administration responded to the influx of unaccompanied children with an aggressive, coordinated Federal response focused on heightened deterrence, enhanced enforcement, stronger foreign cooperation, and great capacity for Federal agencies to ensure that our border remains secure. As a result, the number of unaccompanied children attempting to cross the Southwest border has declined precipitously, and the Administration continues to focus its resources to prevent a similar situation from developing in the future.
To build on these effort and to ensure that our limited resources are used effectively, the President has announced the following actions:
•Shifting resources to the border and recent border crossers. Over the summer, DHS sent hundreds of Border Patrol agents and U.S. Immigration Customs Enforcement personnel to the Southwest border, and the Department of Justice (DOJ0 reordered dockets in immigration courts to prioritize removal cases of recent border crossers. This continued focus will help keep our borders safe and secure. In addition, Secretary Johnson is announcing a new Southern Border and Approaches Campaign Plan which will strengthen the efforts of the agencies who work to keep our border secure. And by establishing clearer priorities for interior enforcement, DHS is increasing the likelihood that people attempting to cross the border illegally will be apprehended and sent back. •Streamlining the immigration court process. DOJ is announcing a package of immigration court reform that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet new DHS-wide enforcement priorities and close cases of individuals who are low priorities. DOJ will also pursue regulations that adopt best practices of court systems to use limited court hearing time as efficiently as possible. •Protecting victims of crime and human tracking as well as workers. The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visa) and trafficking (T visas) who cooperate in government investigations. An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation.
Deporting Felons, Not Families
By settling priorities and focusing its enforcement resources, the Obama Administration has already increased the removal of criminals by more than 80%. These actions build on that strong record by:
•Focusing on the removal of national security, border security, and public safety threats. To better focus on the priorities that matter, Secretary Johnson is issuing a new DHS-wide memorandum that make clear that the government’s enforcement activity should be focused on national security threats, serious criminals, and recent border crossers. DHS will direct all of its enforcement resources at pursuing these highest priorities for removal. •Implementing a new Priority Enforcement Program. Effectively identifying and removing criminals in state and local jails is a critical goal but it must be done in a way that sustains the community’s trust. To address concerns from Governor, Mayors, law enforcement and community leaders which have undermined cooperation with DHS, Secretary Johnson is replacing the existing Secure Communities program with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses. DHS will continue to rely on biometric data to verify individuals who are enforcement priorities, and they will also work with DOJ’s Bureau of Prisons to identify and remove federal criminals serving time as soon as possible.
Accountability – Criminal Background Checks and Taxes
Every Democratic and Republican president since Dwight Eisenhower has taken executive action on immigration. Consistent with this long history, DHS will expand the existing Deferred Action for Childhood Arrivals (DACA) program to include more immigrants who came to the U.S. as children. DHS will also create a new deferred action program for people who are parents of U.S. Citizens or Lawful Permanent Residents (LPRs) and have lived in the United States for five years or longer if they register, pass a background check and pay taxes.
The President is taking the following actions to hold accountable certain undocumented immigrants:
•Creating a mechanism that requires certain undocumented immigrants to pass a background check to make sure that they start paying their fair share in taxes. In order to promote public safety, DHS is establishing a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than 5 years. Individuals will have the opportunities to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement. By providing individuals with an opportunity to come out of the shadows and work legally, we will help crack down on companies who hired undocumented workers which undermines the wages of all workers, and ensure that individuals are playing by the rules and paying their fair share of taxes. •Expanding DACA to cover additional DREAMers. Under the initial DACA program, young people who had been in the United States for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were born 1981 and entered the country before June 15, 2007. DHS is expanding DACA so that individual who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.
* The U.S. Court of Appeals for the 5th Circuit will hold a two-hour oral argument session in New Orleans next month to determine if it should place a stay on U.S. District Court Judge Andrew Hanen’s injunction against President Obama’s executive orders on immigration. Hanen approved the injunction request last month by the 26 states that allege Obama’s actions were unconstitutional.
The oral arguments, which will take place in New Orleans on April 17, will determine if the injunction will be temporarily blocked while the federal government appeals Hanen’s decision.
The Court of Appeals approved the federal government’s request to expedite a merits appeal process related to the states’ lawsuit against the Obama administration and set a schedule through May.
The President’s actions will also streamline legal immigration to boost our economy and promote naturalization by:
•Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses. Under the current system, employees with approved LPR applications often wait many years for their visa to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily. DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application. •Enhancing options for foreign entrepreneurs. DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grown our economy. The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act. •Strengthening and extending on-the-job training for STEM graduates of U.S. universities. In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation. •Streamlining the process for foreign workers and their employers, while protecting American workers. DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected. •Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews. •Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”). •Issuing a Presidential Memorandum on visa modernization. There are many ways in which our legal immigration system can be modernized to reduce government costs, eliminate redundant systems, reduce burdens on employers and families, and eliminate fraud. The President is issuing a Memorandum directing an interagency group to recommend areas for improvement. •Creating a White House Task Force on Nee Americans. The President is creating a White House Task Force on New Americans to create a federal strategy on immigrant integration. •Promoting Citizenship Public Awareness: DHS will launch a comprehensive citizenship awareness media campaign in the 10 states that are home to 75 percent of the overall LPR population. USCIS will also expand options for paying naturalization fees and explore additional measures to expand accessibility, including studying potential partial fee waiver for qualified individual. •Ensuring U.S. Citizenship Can Serve: To further our military’s needs and support recruitment efforts. DHS will expand an existing policy to provide relief to spouses and children of U.S. citizen seeking to enlist in the military, consistent with a request made by the Department of Defense.