Federal Judge in Texas Issues Temporary Injunction Against DAPA and Expanded DACA

What Happened

·         Late Monday night, February 16, Judge Andrew Hanen issued a temporary injunction against the implementation of the Obama Administration’s executive actions on prosecutorial discretion in immigration, known as DAPA and expanded DACA.

The Decision

·         There is nothing surprising in the fact of the injunction. What is surprising, given this judge, is the narrowness of the ruling.

·         Judge Hanen’s prior statements show that he was pre-disposed against favorable exercises of prosecutorial discretion in the immigration context.

·         The judge adopts fairly extreme rhetoric betraying his pre-disposition to rule against the government:  He cites the government’s “failure to secure the borders” and then adopts the plaintiffs’ assertion of purported costs to the states without any evidence in the record.  He even cited that the states will take on the cost of educating “illegal alien children” disregarding the Supreme Court’s Plyler v. Doe decision that providing education for all children is constitutionally required.

·         The TX judge’s decision disregarded information submitted by the government and amici (including AILA) as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide.  Judge Hanen gave credence only to the alleged and unsubstantiated costs and harms to the states.

·         Throughout his findings of APA violations, the judge ignores the fact of an existing rule that covers DACA and DAPA:  8 CFR section 274a.12(c)(14), which provides for work authorization for “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”

·         Authority on prosecutorial discretion remains.  Importantly the court affirmed the executive branch’s prosecutorial discretion.  pp 69 and 83

·         His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act.  It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.

What Happens Now

·         AILA fully expects the federal government to immediately appeal this ruling and to request a stay of the injunction throughout the appeal process so that the initiatives aren’t stalled.

·         AILA is confident the federal government will ultimately prevail and that DAPA and expanded DACA will be fully implemented.

·         In the meantime, AILA recommends that individuals who are potentially eligible for expanded DACA or DAPA begin preparing to apply:  they should begin gathering the necessary documentation and seek good counsel to give themselves the best chance for success and to avoid potential problems.  Importantly, they must be wary of ‘notarios’ who offer legal advice without a license that is unethical and fraudulent.

·         Also important to note is that those who were granted DACA already are in no way affected by this ruling so they should apply for their DACA renewal as planned. This ruling only delays the start of DAPA and the expansion of DACA.

Prior Decisions

·         Lawsuits against similar executive actions on immigration have failed in the past.  A similarly politically motivated lawsuit was thrown out in December when Sheriff Joe Arpaio argued that Obama’s announcements were unconstitutional.

·         In 2012 Mississippi challenged the legality of the DACA program in a case similar to the 26-state lawsuit, but the case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative.  In fact, studies have shown that the deferred action initiatives are not just the morally right thing to do but economically beneficial to our country.

Deferred Action

How the President is protecting two different groups with the same program

Deferred Action is an immigration status that has been used for years to protect a person from deportation. For example, a person who offers to testify against a criminal could receive deferred action as a result. Offering this protection has always existed under the authority to decide how to enforce immigration laws.

Facing inaction from congressional Republicans, President Obama is using this status to protect two separate groups of people from deportation proceedings. Everyone agrees that the immigration system is broken, offering temporary help is a step in the right direction to fixing it.

On June 15, 2012 President Obama announced that USCIS would grant deferred action to people who arrived in the United States before turning 16 years old as long as they meet certain requirements. This program is known as DACA (Deferred Action for Childhood Arrivals).

USCIS may consider you for deferred action for childhood arrivals (DACA) if you:

  1. Entered the United States before turning 16 years old;
  2. Have resided in the United States continuously since January 11, 2010;
  3. Have graduated high school, finished a GED, or are currently in school; and
  4. Have not committed certain criminal offenses.

On November 20, 2014 President Obama announced that he would offer deferred action to parents of United States citizens and parents of Lawful Permanent Residents. This program is known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents).

USCIS can consider you for deferred action for parents (DAPA) if you:

  1. Have resided continuously in the United States since January 1, 2010;
  2. On November 20, 2014 were the parent of a United States citizen or Lawful Permanent Resident; and
  3. Are not an enforcement priority for removal from the United States, under the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.

In every immigration case, and to apply for deferred action, the applicant must demonstrate that they qualify for the benefit and that they deserve the benefit. Receiving deferred action is a privilege and is not a right. Together with your immigration attorney you have to prepare a packet of documents showing that you should be approved.

For more information, visit our site about what your own deferred action lawyer can do for you.

MyRights Immigration Wins Case Against Deportation for Permanent Resident

MyRights Immigration presented the defense against removal of Cancellation of Removal under INA 240A(a) for a long time permanent resident. Although the government attorney contested that our client should not be allowed to remain in the United States, the Immigration Judge ruled in our favor and our client was released from jail.

Removal cases against lawful permanent residence require special attention and care as losing permanent residence in most cases effectively ruins a persons entire life.

GOP Unable to Even Vote on Border Crisis Bill

The GOP in the House of Representatives had anticipated voting on a bill to address the humanitarian crisis at the border. Although the bill had no chance of becoming law, as it provided less than %25 of the funds the President had requested and required drastic changes to policies in place to protect children from violence, the GOP planned the vote as a symbolic effort to claim they at least tried to address the issue.

However after even member of the GOP were unable to come to an agreement, eventually the vote was cancelled. Click here to read more.

Potential Executive Action on Immigration

President Obama has stated that if Congress is unable to pass immigration reform by the end of Summer he will use his executive authority. Use of executive authority has become unavoidable as the immigration system is buckling under the weight of hundreds of thousands of cases.

Although it is still unclear who would qualify for benefits under an executive immigration program, MyRights Immigration Law Firm anticipates a program that may help millions of individuals and family. Read more from the LA Times.

Shawn D. Meade Discusses Supreme Court Ruling on Aged-Out Derivative Beneficiaries

The United States Supreme Court issued a precedent decision on June 9, 2014 limiting the options for derivative beneficiaries who age out (turn 21) while waiting for a visa to become available. Although the decision is negative, it does not change the current options for people in this situation as the Board of Immigration Appeals had already set this precedent in Matter of Wang, 25 I&N Dec. 28 (BIA 2009).