President Obama pushed back hard today against the preliminary injunction issued earlier this week by U.S. District Judge Andrew Hanen temporarily halting the administration’s executive actions on deportations. White House Press Secretary Josh Earnest said the Department of Justice will ask Hanen for an emergency stay sometime before Monday — in effect asking him to lift his own injunction so that the executive actions can move forward as planned.
The immigration actions expand DACA to undocumented immigrants over the age of 30 who arrived in the U.S. as children and create DAPA, a discretionary temporary deportation reprieve for undocumented parents of U.S. citizens and lawful residents. The initiatives, which were set to begin going into effect earlier this week, are expected to offer relief to an estimated 4.5 million undocumented immigrants.
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Hanen’s ruling temporarily delaying DACA expansion and DAPA came in a case brought by the State of Texas and 25 other states that claims the president unconstitutionally bypassed Congress by offering deportation reprieves through executive action. The administration — backed by 12 states, the District of Columbia, law enforcement officials, and numerous highly respected legal scholars — answered that DACA expansion and DAPA are solidly legal and that presidents of both parties have used their executive authority to grant similar deportation reprieves.
For now, Hanen’s ruling has put both initiatives on temporary hold while the administration files its appeal. Here’s what else you need to know.
Will Judge Hanen grant a stay of the preliminary injunction?
When he issued the injunction Monday night, Hanen wrote that once DACA expansion and DAPA are in place “there will be no effective way of putting the toothpaste back in the tube” if Texas and the other states win their case against the president’s executive actions. That strongly suggests that Hanen is not likely to change his mind about halting DACA expansion and DAPA while the case moves through the courts.
It’s more likely that the Obama administration will have to turn to the 5th Circuit Court of Appeals to lift the injunction. The Department of Justice could wait until Hanen rules on their motion to stay and file an appeal with the 5th Circuit and ask the appellate court to lift the temporary hold on DACA and DAPA.
What if the preliminary injunction is lifted?
If the injunction is lifted, both programs could go forward as planned. DACA could go into effect as soon as the Department of Homeland Security can get it up and running — which shouldn’t take long given that the U.S. Citizenship and Immigration Services was ready to begin accepting applications this week. It also means that plans for DAPA — which is expected to go into effect sometime before May 28 — can proceed.
And what if it isn’t lifted?
Regardless of whether or not Hanen or the 5th Circuit stay the preliminary injunction, one thing is crystal clear: the Obama administration is determined to get Hanen’s decision reversed so that the president’s immigration actions can move forward. That’s because, as the White House said today, “There is a solid legal foundation for the president to take the steps that he announced late last year to reform our broken immigration system.”
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The appellate court could take several weeks or months to decide the case. In the meantime, if the temporary injunction remains in place, both the DACA expansion and DAPA will remain on hold. The government will not accept applications for either program.
If the 5th Circuit reverses Hanen’s order — as many experts expect it will do — the DACA expansion and DAPA processes will go forward as planned. If not, the president’s executive actions could be delayed for many more months while the administration asks the Supreme Court to review the case.
What should DACA expansion and DAPA applicants do while the case winds its way through the courts?
DREAMers and parents who were preparing to apply for DACA expansion or DAPA should continue to prepare to apply.
DACA expansion applicants should continue to collect documents and other proof showing their arrival in the U.S. before the age of 16 and their presence in the U.S. on Jan. 1, 2010.
DAPA applicants should collect proof that they’ve lived in the U.S. since before Jan. 1, 2010 and, on Nov. 20, 2014 — the day Obama announced his immigration executive actions — were the parent of a U.S. citizen or lawful permanent resident.
And, of course, applicants should save money so they can pay the expected $465 application filing fee, which includes the cost of criminal background checks.
David Leopold, practices law in Cleveland, Ohio and is the former president of the American Immigration Lawyers Association.
David Leopold