Update on President Obama’s Executive Actions

Fri, 09/11/2015 - 11:35 -- lance.curtright

By Warren Craig

On November 20, 2014, President Obama announced that he would soon be implementing a series of executive actions affecting millions of undocumented immigrants residing in the United States. Most notably, President Obama announced a new program called Deferred Action for Parental Accountability (DAPA), which would provide immigration relief to undocumented immigrants who have a U.S. citizen or lawful permanent resident son or daughter, have resided continuously in the United States since January 1, 2010, and do not have any disqualifying criminal convictions or other adverse history. DAPA recipients would be provided with work permits for a period of three years. The application process for DAPA was set to begin in May 2015.

At the same time, President Obama announced that he would be expanding the eligibility criteria for Deferred Action for Childhood Arrivals (DACA), a program he initiated in 2012 to provide similar benefits for undocumented immigrants who entered the United States before the age of 16 and meet other eligibility requirements. The Obama administration also issued new guidance for Department of Homeland Security (DHS) officers on the exercise of prosecutorial discretion. Under the new guidance, DHS officers are encouraged to exercise discretion with respect to undocumented immigrants who are not considered enforcement priorities (that is, persons who are not recent entrants, do not have significant criminal history, are not national security threats, etc.) by declining to initiate removal proceedings or delaying execution of an outstanding removal order against such individuals. Combined, President Obama's executive actions had the potential to remove the threat of deportation for millions of undocumented immigrants.

Unfortunately, on February 16, 2015, Judge Andrew S. Hanen of the Southern District of Texas placed an injunction against the implementation of DAPA and the expanded version of DACA after the State of Texas and 25 other States filed suit against the Obama administration. In a highly controversial decision, Judge Hanen determined that the State of Texas had standing; (that is, the legal authority to bring suit) and that the DAPA and expanded version of DACA programs violated a technical requirement of the Administrative Procedural Act. Following the ruling, the Obama administration put on hold its plans to implement the DAPA and expanded DACA programs.

The Obama administration appealed the ruling and requested the United States Court of Appeals for the Fifth Circuit to issue a stay on the injunction, which would have allowed the administration to proceed with implementing its executive actions while its appeal of the injunction remained pending. On May 28, 2015, a three-member panel of the Fifth Circuit denied the administration's request for a stay. The decision was split 2-1, with two Republican-appointed judges siding against the administration. The appeal of injunction is currently pending before the Fifth Circuit; both sides delivered their oral arguments before the court on July 10, 2015. A decision is expected in the coming months.

While legal uncertainties remain about the DAPA and expanded DACA programs, it is important to note that other Obama administration initiatives remain untouched. The 2012 DACA action is not affected by the injunction, and persons who qualify under the 2012 guidelines can still apply. Likewise, persons who received DACA status and whose status is set to expire in the coming months can and should apply to renew their status. Additionally, the new DHS guidance on prosecutorial discretion remains in place meaning that undocumented immigrants who are not considered enforcement priorities can seek to have their removal proceedings closed or have their deportation delayed under the new standards announced in this guidance.

DMCA attorneys have successfully obtained and renewed DACA status for many of our clients. We have also had success in persuading DHS officers to grant stays of removal or close removal proceedings under the new guidance for prosecutorial discretion. We are continuing to monitor the ongoing litigation over the DAPA and expanded DACA programs and remain committed to pressing for every advantage available for our clients. If you would like to discuss how any of the above actions might affect your case, we encourage you to schedule an appointment with a DMCA attorney today.