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.