Monthly Archives: February 2015

Judge Hanen's February 16, 2015 Preliminary Injunction will ultimately be reviewed by this Federal Appellate Court.

Judge Hanen’s February 16, 2015 Preliminary Injunction will ultimately be reviewed by this Federal Appellate Court.

The White House’s appellate strategy in response to Judge Hanen’s Executive Action injunction now begins to emerge.  It  appears the Administration’s Department of Justice will seek an emergency stay of Judge Hanen’s preliminary injunction issued in the late night hours of Monday February 16, 2015.

A request for emergency stay, which must first be filed before Judge Hanen, would be a request by the Administration to delay the enforcement of Judge Hanen’s own injunction while the Administration appeals the injunction before the Fifth Circuit Court of Appeals. Not surprising, it is very likely Judge Hanen will deny the request to stay his own injunction.

However, in that circumstance, the Administration will likely proceed to renew the request for emergency stay directly before the Fifth Circuit where it is more likely to be considered and, perhaps, granted.

If the Court of Appeals, which is headquartered in New Orleans, were to grant the emergency stay, the Administration would be free to begin accepting applications for expanded DACA and DAPA as previously scheduled until the Court of Appeals makes a final ruling on the validity of Judge Hanen’s injunction.

However, even if the request for emergency stay is ultimately denied by both Judge Hanen and the Court of Appeals, the Administration will still likely proceed with the appellate process seeking review and reversal of Judge Hanen’s Injunction under normal or expedited scheduling.  In this circumstance, an appeal under expedited rules may take serveral weeks to months.

The Administration’s current plan was announced earlier today by the following tweet from the Department of Justice Spokesperson:

Brandi Hoffine @Hoffine44.@PressSec – DOJ will seek stay in texas immigration case and will file with the district court by monday at the latest.

Texas Judge puts Executive Action on Temporary Hold

 

Federal District Court Judge Hanen from Brownsville, Texas, issued a Preliminary Injunction on 2.17.2015.

Federal District Court Judge Hanen from Brownsville, Texas, issued a Preliminary Injunction on 2.16.2015.

In the late hours of Monday, February 16, 2015, Federal District Judge Hanen, from the Southern District of Texas Federal District Court, issued his Order and Memorandum granting the Preliminary Injunction requested by 26 plaintiff states all led by Republicans.  The Preliminary Injunction temporarily stops the Obama Administration from going forward on its Deferred Action for Parental Accountability (DAPA) and expanded DACA programs.  In the wake of all the “Statements” and commentary in favor and in opposition to Judge Hanen’s Injunction and many conflicting news reports, here is what Judge Hanen did and, importantly, did not do and where we anticipate this process will go from here.

What the Injunction DOES NOT DO:

  • Most importantly to understand is what the Injunction entered DOES NOT DO. The Injunction Order is very clear that it does not affect the existing two year DACA program as implemented in 2012.  Individuals who have received deferred action and work authorization, individuals who are applying for the first time for a two year grant of deferred action, and individuals who are applying or will be applying for renewal of their two year grant of deferred action all under the 2012 DACA program are ALL UNAFFECTED.
  • The Injunction Order does not surprise anyone who has been watching this litigation closely.  Judge Hanen has written opinions in other matters that have been before him demonstrating a strongly critical opposition to the immigration policies of the Obama Administration.  Most recently, Judge Hanen has made comments very critical of the Administration’s handling of the unaccompanied minor crisis on the Southern border.  This is this reason the 26 Republican Plaintiff States picked this court to file their lawsuit.
  • The Judge’s Order does not constitute a final determination on any claim brought against the Administration.  It is a TEMPORARY ORDER ONLY intended to keep the current status quo in place and unchanged until the merits of the arguments before the court can be decided.
  • The Judge’s Order granting the Preliminary Injunction and any Judgment he may enter in the future is NOT AND WILL NOT BE THE FINAL WORD  on the President’s Executive Action.  Any final decision by Judge Hanen will be subject to review by the Fifth Circuit Court of Appeals and, eventually the United States Supreme Court.
  • The Judge’s Order DOES NOT REFLECT the majority thinking of lawyers and judges across the country on this issue.  In fact, a month ago a very similar lawsuit was filed by plaintiffs including Sheriff Joe Arpaio (Phoenix, AZ) in the Federal District Court for Washington, D. C. and that suit was quickly dismissed. Also, in September 2014, over one hundred law professors across the United States signed onto an opinion letter that laid out the legal basis for everything the President did in November 2014.  You can download that letter here: September 3, 2014 Letter to President Obama
  • Neither the Injunction nor the Judge’s 123 page Memorandum detailing the Judge’s reason for granting the Injunction claim that the President acted against the Constitution. There has been endless talking head arguments claiming that the President acted outside his constitutional authority. However, Judge Hanen, an extremely conservative judge by any estimate, did not agree.  Judge Hanen actually explicitly acknowledged the President’s constitutional right to exercise discretion in the manner he directs the allocation of law enforcement resources.
  • Nowhere in the Injunction or the accompanying Memorandum does the Judge make reference to a Nationwide hold on implementation.  In fact, Judge Hanen only explicitly ruled that the State of Texas had standing to bring claims against the Administration.  Judge Hanen did not clearly rule on the question of whether the any of the other 25 plaintiff states had standing or the merits of their claims.  Judge Hanen’s Order and Memorandum make no reference at all to the remaining states who did not join in the suit.
  • The Injunction did not affect any other aspect of the President’s Executive Action Announcement in November 2014.  The directive of the Secretary of Homeland Security Jeh Johnson’s Memorandum related to the prioritization of individuals subject to removal remains unaffected.  Therefore, individuals identified in that Memorandum as non-priority individuals for removal purposes remain unchanged.  This leaves in effect the President’s mandate that low priority individuals not be subjected to the use of Detainers by ICE and are still eligible to be considered for Administrative Closure before the Immigration Court.  Additionally, the directive to USCIS to proceed with regulatory rule making to expand the provisional stateside waiver process remains in full effect.

What the Injunction DOES DO:

  • The Judge’s Order may or may not delay acceptance and processing of applications for expanded DACA and DAPA from the states that did not join in the suit (such as individuals from Missouri and Illinois).  The Administration and USCIS continue to debate internally whether Judge Hanen’s Order leaves the Administration free to  implement expanded DACA and DAPA  in the 24 states that did not join in the suit.  As of the date of this Post, the Administration has not yet decided how it will read the Judge’s Injunction.
  • The Judge’s Order does require a temporary hold causing USCIS to delay accepting application for the expanded DACA.
  • The Judge’s Order does provide potential applicants for expanded DACA and DAPA additional time to gather documents and organize their supporting materials to be better prepared once the Injunction is hopefully overruled.

Next Steps — What can we DO NOW:

  • MOST IMPORTANTLY potential DACA and DAPA applicants should keep collecting and organizing documents to prove their presence and other elements necessary to qualify for DACA/DAPA.
  •  Save money for filing fees and legal assistance to assemble the best possible application package once applications can be filed.
  • Seek out and maintain a relationship with competent legal counsel who you know and trust and who have extensive experience filing successful DACA applications in the past.
  • Bookmark and check back to the US Legal Solutions Executive Action Resource Page.

Families wait for Judge’s decision.

As the Washington political establishment squabbles, people are waiting.

This time its the litigants in Texas who dither while families wait.

Literally millions of people in our communities wait while Judge Hanen in Brownsville, Texas considers thousands of pages of pleadings, memoranda, briefs and other legal filings in the Southern District of Texas Federal District Court.  It is here that more than 20 Republican governors and other state elected officials have filed suit against the Obama administration in State of Texas et al. v. United States of America, Case No. 14-CV-0025,

The lawsuit challenges the authority of the President to issue his Executive Actions announced on November 20, 2014 and seeks a Preliminary Injunction to stop their implementation while the suit proceeds on the legal merits of the Plaintiff’s claims.  So, While the USCIS website has announced that on February 18, 2015 it will begin accepting applications filed under the expanded DACA provisions of the President’s announcements, millions wait to see if an unelected judge will make himself a roadblock to their only shot at family security in the foreseeable future.

You can read more about this suit and what Judge Hanen, or the Fifth Circuit Federal Court of Appeals, should do if the law is to be followed in David Leopold’s excellent Blog/analysis by clicking here: 2.4.2015 Leopold blog on Texas lawsuit

We will be watching if Judge Hanen rules before applications can be filed.  We will keep you posted!

US Legal Solutions has a new Executive Action Resource Page!

immigrants for ea photoUS Legal Solutions is happy to announce a new addition to our website.  Our new Executive Action Resource Page can be found by clicking here.  Alternatively, just go to our home page and under “News and Updates” click on “Executive Action Resources”.  You will find lots of useful information including:

  • An updated and current schedule of US Legal Solutions Charlas Informativas
  • A chronological listing of links to all the US Legal Solutions News and Updates postings related to Executive Action
  • Links to other resources related to Executive Action.

Bookmark the Executive Action Resource Page and check back often!

Executive Action Update!

President Obama announces Executive Action.

President Obama announces Executive Action.

It has now been nearly two months since the President announced his Executive Action on Immigration November 20, 2014.  In preparation to implement the President’s announcement, USCIS has moved forward in preparing the necessary forms for expanded DACA this month and to implement Deferred Action for Parental Accountability in May.  USCIS has had at least two public engagement conference calls in preparation to implement these programs and is expected to issue more detailed guidance for these two programs in the next several weeks.  USCIS has also announced on its website that it will begin accepting applications under the expanded DACA guidelines February 18, 2015. (click here to read more from USCIS).

As expected, there has been push back from the Republicans on two different fronts.  In Congress, the House leadership crafted and voted out of the House a DHS funding bill that contains language which, if it became law, would impede the Administration from implementing the President’s November 20, 2014 directives.  As expected, however, this bill has stalled in the Senate where the Republicans lack the 60 votes necessary to end debate and call a vote on this bill.  As a result, this effort to stall the President’s initiatives has failed to date and will continue to fail as long as the opponents of this effort continue to filibuster the bill and prevent a vote.

Unfortunately, because the Republican majority has insisted on holding DHS funding hostage in their effort to stop the President’s initiates, DHS now risks running out of operational funding later sometime in February 2015. We are now on the brink of a possible DHS shut down.  This threatens our country’s national security at every level.  The agencies that fall under the Department of Homeland Security which are now threatened with a possible loss of operational funding include:

  • TSA agents providing security at our nation’s airports,
  • The Secrete Service protecting our President and other elected leaders,
  • The Federal Emergency Management Agency which provides local assistance in the event of tornadoes, earthquakes, hurricanes, flooding and other natural and man made disasters,
  • The Transportation Safety Administration that keep our highways, trains and commercial flying safe,
  • Even Customs and Boarder Protection that secures our boarders.

Without question, the Republican strategy of holding DHS funding hostage over their frustration with the President’s Executive Actions threatens to leave this nation more vulnerable to attack and will not succeed at stopping the President’s initiatives.

The President’s initiatives have also been challenged in the Federal District Court for the Southern District of Texas.  More than 20 Republican Governors have joined as Plaintiffs in this lawsuit claiming to be interested parties and claiming that their states have been “harmed” by the President’s actions.  They have asked the Texas Federal District Judge to issue an Injunction to stop implementation of the President’s Executive Actions until their claims can be fully adjudicated.

Many different interested parties have weighed in on this lawsuit by filing Amicus Curiae (” Friend of the Court”) arguments on both sides.  Supporting the President and his Executive Action include arguments submitted by New York Mayor Bill de Blasio with help from our own St. Louis City Mayor’s office.

At the end of the day, the Plaintiffs’ legal efforts to stop the President’s Executive Actions are most likely to fail on the issue of standing.  Standing is the legal requirement that the Plaintiffs must show that in some way they are personally injured by the President’s actions.  This will be very difficult for the Plaintiffs to show.  Admittedly, the Federal District Judge hearing this case is very conservative and the Plaintiffs chose to file their suit in this court because of its conservative leaning.  However, the law is not on the Plaintiffs’ side as explained in further detail by David Leopold, former National President and General Counsel of the American Immigration Lawyers Association.

You can read David Leopold’s well written blog/analysis by clicking here: 2.4.2015 Leopold blog on Texas lawsuit.

We at US Legal Solutions expect that the President’s Executive Actions will go into effect and the Republican efforts to interfere with the President’s sensible prioritization of limited enforcement resources will fail.  We fully expect that, if the President’s initiative is able to proceed, millions of immigrants in our communities will benefit and so will our Nation!