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Federal Appellate Court Affirms Injunction Against the White House’s 2014 Executive Actions on Immigration

Cuauhtemoc-Hidalgo Villa-Zapata [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via FlickrThe White House’s 2012 executive action on immigration, known as Deferred Action for Childhood Arrivals (DACA), has helped hundreds of thousands of people who arrived in the U.S. as children, many of whom know no other home but here. In November 2014, President Obama announced a new executive action intended to help parents of U.S. citizens and lawful permanent residents (LPRs) who are in this country without valid immigration status. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), prompted a lawsuit by 26 state governments challenging it on constitutional and statutory grounds. A court granted an injunction halting the program, which a federal appellate court upheld in November 2015. A petition for certiorari by the federal government is now pending before the U.S. Supreme Court.

DACA allows people who are in the U.S. without lawful immigration status to remain here if they meet various criteria. They must have been under the age of 31 on June 15, 2012, arrived in the U.S. as a minor, and remained here continuously since 2009 or earlier. They also must be enrolled in school, have a high school diploma or equivalent, or have an honorable discharge from the U.S. Armed Forces or Coast Guard. Finally, they must not have any felony or significant misdemeanor convictions. DACA status is effective for two years, with possible renewals, and it includes work authorization. It does not confer any other specific immigration benefit or status. It is merely an agreement by the federal government to defer immigration enforcement, including deportation, while the person maintains DACA status.

At the time it was announced by the White House and the Department of Homeland Security (DHS), DAPA would allow certain parents of citizens and LPRs to remain in the country for two-year periods, again without conferring any specific immigrant status. To be eligible, an individual must have been present in the U.S. on January 1, 2010 and resided here continuously since then. As of November 20, 2014, they must have had a son or daughter who is a citizen or LPR. Finally, they cannot be categorized as an “enforcement priority” by DHS.

Twenty-six states filed suit against the federal government, alleging that the 2014 executive actions violated the Administrative Procedures Act, 5 U.S.C. § 500 et seq., and the “Take Care” Clause, U.S. Const. art II, § 3, cl. 5. In February 2015, a judge granted a temporary injunction preventing the implementation of DAPA. Texas, et al., v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). The court noted that the injunction did not apply to DACA, except to the extent that the 2014 executive action expanded that program.

The federal government requested a stay of the injunction while an appeal was pending. A panel of the Fifth Circuit denied that request in May. 787 F.3d 733 (5th Cir. 2015). The court affirmed the injunction late last year, leading to the government’s appeal to the country’s highest court. No. 15-40238, slip op. (5th Cir., Nov. 9, 2015). The Supreme Court is scheduled to review the federal government’s petition on January 15, 2016.

Samuel C. Berger is a visa attorney in the greater New York City and Northern New Jersey areas. We represent prospective immigrants who want to come to this area, immigrants who have made their homes here, and businesses and families petitioning on an immigrant’s behalf. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with a member of our legal team.

More Blog Posts:

Immigration News Affecting New Jersey in April 2015, New York & New Jersey Immigration Lawyer Blog, April 8, 2015

Executive Actions on Immigration Part 2: Authority and Opposition, New York & New Jersey Immigration Lawyer Blog, December 24, 2014

Executive Actions on Immigration Part 1: The Context and the Benefits, New York & New Jersey Immigration Lawyer Blog, December 10, 2014

Photo credit: Cuauhtemoc-Hidalgo Villa-Zapata [CC BY 2.0], via Flickr.