Executive Action on Immigration Halted

On February 16, 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas ordered a temporary injunction to halt key portions of President Obama’s recent executive action on immigration. Specifically, the order blocks the implementation of the new Deferred Action for Parents of Americans and Lawful Permanent Residents (also known as Deferred Action for Parental Accountability or DAPA) program and the expansion of the Deferred Action for Childhood Arrivals (DACA) program.

The order was in response to a lawsuit brought by 26 states to prevent the implementation of DAPA and expansion of DACA—two of the cornerstones of President Obama’s executive action on immigration announced on November 20, 2014. The states involved in the lawsuit directly or through their elected representatives include Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

The court considered the following main issues in its deliberations:

  1. whether the states had standing to bring the underlying lawsuit;
  2. whether the U.S. Department of Homeland Security (DHS) has the necessary discretion to institute the DAPA program and related expansions of the DACA program as directed by President Obama’s executive action; and
  3. whether the DAPA program “is constitutional, comports with existing laws, and was legally adopted.”

It is important to note that Judge Hanen did not rule on the ultimate legality of the executive action. His ruling was limited to a finding that there was sufficient merit to the underlying challenge from the states to suspend implementation of the president’s new orders while the case moves forward and arguments are heard.

Background on DAPA and DACA

Under DAPA and DACA, previously undocumented workers would be shielded from deportation and would be eligible to receive work permits.

The provisions of the new DAPA program would apply to the parents of U.S. citizens and “green card” holders who have been continuously present in the United States since before January 1, 2010. These provisions are now blocked by the district court’s temporary injunction.

Under DACA, individuals who came to the United States as children, who continuously resided in the United States since June 15, 2007, and who pass certain background checks and educational requirements are eligible to receive a work permit and deferral of deportation. The basic provisions of the DACA program are unaffected by the court’s recent order. However, changes to the DACA program under President Obama’s executive order—which would expand eligibility to undocumented individuals who entered the country before January 1, 2010, eliminate the current age cap of 31, and extend the work permit and deportation deferral periods to three years—are subject to the district court’s injunction.

U.S. Citizenship and Immigration Services (USCIS) had been preparing to accept work permit applications under the new DAPA program by May 2015 and applications under the expanded DACA provisions by as early as February 18, 2015. Even if the district court’s order is reversed on appeal, those timeframes may now be pushed back. Applications under the original DACA provisions, however, should proceed unimpeded.

Who Will Be Affected by the Injunction . . . And Who Will Not

Parties most directly affected by this ruling are those who may be planning to take advantage of the new DAPA program or the newly expanded DACA provisions announced by President Obama last fall. This potentially encompasses more than four million individuals. People seeking protection under other immigration provisions that are not the subject of the lawsuit brought by the states should not see a change to their eligibility for work authorization or other benefits accorded under immigration law.

One such policy change established by the recent executive action which will not be affected is the extension of work authorization to the spouses of H-1B visa holders. The proposed rule on “Employment Authorization for Certain H-4 Dependent Spouses” was published in the Federal Register on May 12, 2014, and is currently in the Final Rule stage at the Office of Management and Budget. Because the H-4 spousal provision has already passed through a complete rulemaking process in accordance with the Administrative Procedure Act, its implementation should not be affected by the district court order.

White House Plans to Appeal the District Court Order

The administration has put its new plans for the DAPA and DACA programs temporarily on hold in compliance with the district court’s order, but it is already planning to appeal that order and request a stay of the temporary injunction. Whether a stay will be granted and, if so, for how long, remains unknown.

Ogletree Deakins is continuing to monitor developments with the executive order on immigration and related challenges in Congress and the courts, and will provide updates on policies which may be affected as the executive order’s status continues to unfold.