Court of Appeals to Consider fate of DAPA and DACA

By Attorneys Ben Loveman & Nancy E. Miller

Earlier this year a Texas Judge blocked implementation of President Obama’s recently announced deferred action program for parents of U.S. citizens and lawful permanent residents (DAPA) and expanded deferred action for childhood arrivals (DACA).  However, the Obama administration has not accepted this attack on the President’s discretionary power without a fight.  It filed an appeal with the United States Court of Appeals for the Fifth Circuit and is seeking an emergency halt to the Texas Judge’s order. On April 17, 2015, the Obama Administration will argue its case before the Fifth Circuit Court of Appeals at a hearing to be held in New Orleans. We will then wait to see what the Fifth Circuit decides.

The Texas Judge’s order brought great disappointment and uncertainty to immigrant families whose hopes for temporary relief and work authorization had been buoyed by the President’s plans.  Prior to the Texas Judge’s order, the expanded DACA program was set to begin accepting applications in February of 2015 while DAPA applications would have been accepted in May of 2015. 

At stake is the immediate fate of two key components of President Obama’s executive initiatives on immigration which he announced late last year and which brought great hope to many millions of undocumented persons across the United States.  DAPA would provide protection from deportation and a three-year work authorization document along with the potential to apply for permission to travel.  To qualify you must have: (1) a U.S. citizen or permanent resident son or daughter (of any age) as of November 20, 2014; (2) continuous presence in the U.S. since before January 1, 2010; (3) physical presence in the U.S. both on November 20, 2014 and at the time of making the request for DAPA.  Applicants must also not be considered a priority for removal. The President had expanded the DACA program to eliminate the upper age limit of 31 and by bestowing eligibility to applicants arriving in the United States before January 1, 2010 whereas before eligibility required arrival before June 15, 2007.  If the Obama Administration’s appeal is successful, the new programs should be implemented as originally planned meaning DAPA could go into effect as early as May of this year and the expanded DACA program would go into effect immediately.

Supporters of the Obama Administration’s plan, such as the mayors of many large cities such as San Francisco, New York, Chicago, Los Angeles, Atlanta, Seattle, Washington D.C., Wisconsin and the Attorneys General from several states as well as The National League of Cities, and pro-immigrant advocacy groups, have filed legal briefs in support of the Obama Administration’s authority to implement the proposed DAPA and expanded DACA programs. 

The program’s challenge was spearheaded by the Attorney General from Texas.  He was joined by conservative leaders of several other states.  They have advanced the claim that the Obama Administration proposals represent an overstepping of executive authority and that the programs will cause direct harm to their interests and financial well-being.  The central harm alleged is that implementation of the program will result in the States being forced to spend tax-payer dollars on issuing state drivers licenses.

Many experts in the legal and academic communities see the Texas Judge’s ruling as weak and ripe for reversal.  These experts cite years of legal precedent allowing the President wide latitude in exercising discretion over immigration issues and especially with regard to the exercise of prosecutorial discretion to grant deferred action. The experts also point to past-presidents exercise of executive power to grant deferred action to large groups of undocumented persons. Still, the outcome of the case is far from certain and could turn on the composition of the panel of judges who will hear arguments in the case.  A recent decision from the Fifth Circuit Court of Appeals on a related legal issue gives supporters of the program cause for optimism but most commentators are avoiding getting their hopes too high just yet.  Nonetheless, advocates and experts alike are hopeful and cautiously optimistic that the Obama Administration will prevail. 

The promise of these two programs is great and the relief they could bring to millions of hardworking immigrant families is tremendous.   We will all be hoping that the Court of Appeals strikes down the Texas Judge’s order and allows the programs to be implemented. 

However, whether or not the new programs are implemented, the last several years have seen several changes to immigration laws and processes.  This means that many people who were previously ineligible for immigration benefits may now be eligible.  We encourage you and your loved ones to consult an experienced, knowledgeable and reputable immigration attorney today to assess your options.