DAPA and Expanded DACA Temporarily Blocked

By Reuben S. Seguritan

February 25, 2015

U.S. District Judge Andrew Hanen issued a temporary injunction on February 16 putting on hold the implementation of President Obama’s Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program.

As a result, the Department of Homeland Security did not begin accepting applications for DACA under the expanded program last February 18 as planned.

Although DHS Secretary Jeh Johnson strongly disagreed with Judge Hanen’s decision, he affirmed that the DHS will comply with the decision. He, however, clarified that the ruling does not affect the existing DACA program launched in 2012. The order does not also affect the Department’s authority to implement enforcement priorities established in the November 20, 2014 memorandum.

The lawsuit seeking to prevent the Obama Administration from implementing the executive actions was filed on December 3, 2014. Texas leads 25 other states in the lawsuit, namely, 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, Utah, West Virginia, and Wisconsin.

In issuing the temporary injunction, Judge Hanen based his decision on the claim that the administration did not comply with the Administrative Procedures Act. He has yet to rule on the merits of the case. The order effectively halts the implementation of the programs until the case is resolved.

The White House will appeal the order. Josh Earnest, White House press secretary said, “We will seek that appeal because we believe when you evaluate the legal merits of the arguments, that there is a solid legal foundation for the president to take the steps he announced last year to help reform our immigration system.”

Immigrant rights advocates also took issue with Judge Hanen’s basis for issuing the order. The American Immigration Lawyers Association, in a statement, pointed out, “His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.”

They remain confident that the lawsuit, just like previous legal challenges, will also fail. It can be recalled that last December, a politically motivated lawsuit was dismissed when Sheriff Joe Arpaio contended that President Obama’s announcements in November 2014 were unconstitutional.

Similarly, in 2012, Mississippi’s lawsuit challenging the legality of the original DACA program was also dismissed. In that case, the judge found that the perceived economic hardship claimed by the state was not based on facts.

President Obama, for his part, is confident that Judge Hanen’s order will be overruled. According to him, “The Department of Homeland will continue with the planning because we want to make sure that as soon as these legal issues get resolved – which I anticipate they will, in our favor – that we are ready to go.”

Meanwhile, the Department of Justice has filed for an “emergency stay” of the court order, pending appeal, or in the alternative, to stay its order beyond application in Texas. If the stay is granted, DHS can finally begin accepting requests for DACA under the expanded program as well as requests for DAPA in May as scheduled. Millions of immigrants hoping to benefit from both programs would not have to wait many months for the decision on the appeal.

This recent development on the President’s executive actions may have delayed the implementation, but it has not dampened the hopes of the immigrant community. As Karen Tumlin, Managing Attorney of the National Immigration Law Center pointed out, “We’ve hit a speed bump on the road to the implementation of these programs, but folks should stay the course, get their documents ready, prepare to apply, because the programs will open their doors eventually.”