Two Executive Actions held out hope for millions and their would-be employers: they would result in many undocumented workers being able to remain in the US for an additional three years without fear of deportation, and, equally important, to work legally with employment authorization for three years. Unfortunately, things have stalled.

A Review: What are DACA and DAPA?

Please see our recent Alert on President Obama’s Executive Action on Immigration Policy article for a review of Deferred Action for Parents (DAPA) and Deferred Action for Childhood Arrivals (DACA), published on November 24, 2014.

The Migration Policy Institute estimated that about 3.7 million undocumented immigrants in the US would potentially be eligible for DAPA alone. In fact, DAPA would enable many otherwise ineligible workers to become employable.

Why are DACA and DAPA “on hold”?

In December, 2014, Texas and 25 other states, including North Carolina, filed a lawsuit in the  Southern District Court of Texas seeking to block both DAPA and expanded DACA. The main grounds for their suit were the costs of issuing driver’s licenses and other associated costs of giving the undocumented immigrants legal status. Other issues being considered included exceeding executive power, failure to adhere to rulemaking procedures, and standing -- the right of the states to challenge federal immigration policies.

On February 16, 2015, Judge Andrew Hanen issued a temporary injunction blocking both programs from going into effect. Current DACA requirements and two-year terms were supposed to remain unchanged and DAPA has not been implemented.

On February 23, 2015, the Department of Justice (DOJ) asked Judge Hanen to lift his injunction while it appealed his ruling to the 5th US Circuit Court of Appeals in New Orleans. This request was denied. On May 26, 2015, the DOJ’s appeal of Judge Hanen's injunction to the 5th Circuit was turned down, leaving the injunction in place.

The DOJ has since admitted that the Department of Homeland Security (DHS) violated Judge Hanen’s injunction. Specifically, it filed an Advisory on March 3 informing Judge Hanen that, despite having assured him in open court and in written pleadings to the contrary, between when the President announced his Executive Action on November 20, 2014, and February 16, 2015, when the injunction was issued, the DHS had begun implementing part of the President’s plan - issuing 108,000 three-year work permits to DACA applicants.

On April 7, Judge Hanen found that attorneys for the government “misrepresented the facts” to the court, and was annoyed that the DOJ attorneys did not immediately inform him upon their discovery of this misrepresentation, saying that their claim of prompt, remedial action was “belied by the facts,” as they waited over two weeks to inform him. In another advisory filed on May 7, the DOJ further informed Judge Hanen that DHS “sent three-year work authorizations after the court issued its injunction” on February 16 to approximately 2,000 individuals and that DHS was attempting to convert these three-year permits back into two-year permits. 

In an order issued on May 8, Judge Hanen cited additional evidence to support his finding that states have standing to challenge the President’s Executive Actions. Judge Hanen noted that while testifying on April 14 before the House Judiciary Committee, Sarah Saldana, Director of Immigration and Customs Enforcement, “reiterated that any officer or agent who did not follow the dictates of the 2014 DHS Directive [i.e., the President’s Executive Action] would face the entire gamut of possible employee sanctions, including termination.” Judge Hanen said that “the President’s statements have now been reaffirmed under oath by the very person in charge of immigration enforcement.” This signified, he said, that the government “has announced, and has now confirmed under oath, that it is pursuing a policy of mandatory non-compliance with the [Immigration and Nationality Act], and that any agent who seeks to enforce the duly-enacted immigration laws will face sanctions — which could include the loss of his or her job.” 

Judge Hanen has required that the three-year work permits be returned by DACA applicants and two-year permits issued by the end of July, issuing another court order on July 7 requiring DHS Director Jeh Johnson and four other DHS officials appear at an August 19 hearing to confirm that this issue has been resolved or “be prepared to show why he or she should not be held in contempt of court…This court has expressed its willingness to believe that these actions were accidental and not done purposefully to violate this court’s order.  Nevertheless, it is shocked and surprised at the cavalier attitude the government has taken with regard to its ‘efforts’ to rectify this situation,” If the government fixes the problem by July 31, Judge Hanen continued, he will cancel the August 19 hearing.

All this serves to show the contentious posture of the government versus the judiciary, not boding well for any swift resolution for the implementation of expanded DACA and DAPA, and keeping millions of employable individuals either not working or continuing to work illegally. Meanwhile, on July 10, 2015, a hearing on the appeal to the 5th Circuit took place before a three judge panel without resolution, as millions of undocumented are in limbo and would-be or actual employers remain unable to hire or retain them.