What happened and what happens next?
On May 26, 2015, in a 2-1 decision, the U.S. Court of Appeals for the 5th Circuit denied the Obama administration’s request to lift the hold on the president’s executive actions on immigration. Had the Obama administration’s request been granted, persons who qualified for Deferred Action for Parents (DAPA) as well as for the expanded form of Deferred Action for Childhood Arrivals (DACA) would have been eligible to apply.
The action was brought by 26 states specifically to be heard where the most conservative, anti-Obama, anti-immigrant judges sit. And the District Court who made the initial ruling as well as the two judges who denied the Obama administration’s request are two of the most conservative judges on the most conservative court in the United States.
To have the legal action heard by the court, 26 states, led by Texas, had to demonstrate that they would be harmed by having immigrants granted the relief of DAPA and expanded DACA. What was the harm? People granted this relief would receive employment authorization and, therefore, qualify for driver’s licenses. To process these licenses, Texas would spend $130.89 on each license it issues to those granted relief. This cost was the harm that gave them “standing,” the right to fight the Obama administration’s actions. (They also ruled that the proposed benefits suggested by the Obama administration, such as increased tax revenue, was too speculative.
Now that Texas had “standing,” they had to have an argument stating why the executive action should be deemed illegal. The reason involved whether DHS was required to have a “notice and comment” period, meaning was DHS supposed to allow time for the public time to comment on this proposed change before it would take effect. This was not done, nor was it done when DACA was first announced in 2012. In a practical sense, this was not done because deferred action has existed for decades. The announcements for DACA and DAPA specified groups of people who qualified for this benefit. However, the majority stated that although the new orders stated that DHS officers are to use discretion when deciding DACA, because a high percentage of people were granted DACA after 2012 the majority judges determined that DHS just approved every application that came before them that could possibly qualify and, therefore, this differed from the deferred action in the past. Because of this difference, the majority said, DHS was in violation by not having a “notice and comment” period before it was announced.
What happens next? The Fifth Circuit will hear the administration’s appeal of the injunction this July, and it will likely be different judges hearing the case in July. This past April, this court denied a challenge by the state of Mississippi to DACA that started in 2012, stating that the state lacked “standing,” differing from the two judges who issued the majority decision last week. Thus, there is still reason for optimism that DAPA and expanded DACA will eventually become a reality. However, you might want to consult with an attorney about whether other relief, such as adjustment of status and/or cancellation of removal (which some immigrants refer to as ten years) should be pursued while we wait for the courts to make a final ruling. Finally, remember that the enforcement priorities stated by DHS on November 20, 2014 have not changed, regardless of this most recent setback.
Eric Horn is an attorney located at 1010 Suffolk Avenue, Suite 2, Brentwood, New York 11717 and 162 Post Avenue, 2nd Floor, Westbury, New York 11590. Mr. Horn is past chair of the Immigration Committee of the Suffolk County Bar Association. Mr. Horn is also an active member of the American Immigration Lawyers Association (AILA). Listen to Mr. Horn answer callers’ questions and discuss immigration and nationality law on 540 AM Mondays from12:30pm to 1:30pm. To schedule a consultation, please contact (631) 435-7900 and (516) 882-7770.
