Tag Archives: DACA

Fifth Circuit – DAPA, DACA

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Fifth Circuit Blocks Request to Stay DAPA and Expanded DACA

 

This was expected, but that does not mean it does not hurt for millions of hopeful immigrants.

The Fifth Circuit for the US Court of Appeals issued a decision yesterday, blocking the emergency request for a stay that the Department of Justice requested. The Department of Justice requested that the court allow the DAPA and expanded DACA programs to go into effect. A federal judge in Texas blocked from going into effect. These were heavily publicized executive action orders from November that had years of anticipation. After Congress did not pass comprehensive immigration reform, President Obama took it within his executive authority to pass limited relief for certain individuals without status. The court’s decision was 2-1, with the one dissenting judge finding this case to be outside the judicial purview. The Fifth Circuit heard oral arguments on April 17 and this decision was expected.

This was only the decision on whether the stay of the federal judge’s preliminary injunction should be granted. This means that the programs will continue to be unavailable. The Fifth Circuit will hear the appeal of the preliminary injunction in July.

Expanded DACA is intended to be an improvement of the existing DACA program, which is still in effect. DAPA is supposed to provide protections to parents of US citizens and permanent residents, much in line with the US’s underlining goal of immigration policy – family togetherness. Somewhere between 4 -5 million individuals would benefit from these programs, which would allow for work authorization and authorized stay. The eligible individuals need to be low removal priorities, meaning they have a clean criminal record or close to clean record. These people continue to wait in limbo, as we wait for oral arguments in July and a subsequent decision.

Encouraging USCIS Speech

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USCIS Director Delivers Speech on Immigration Reform

Leon Rodriguez gave a speech in Salt Lake City, Utah yesterday, in which he upbraided the immigration system for lacking “justice.” Rodriguez is the director of US Citizenship and Immigration Services, which is the benefits wing of the Department of Homeland Security. He delivered his speech to the Catholic Legal Immigration Network, defending President Obama’s executive orders and imploring Congress to improve justice within the immigration regime.

Rodriguez’s critique of the immigration system carries family history. He is the son of Cuban immigrants and his family was split apart as some members migrated from Cuba in the 1960s. Some members of his family were fortunate to escape and begin a new life in the United States. Others were left behind. His larger point, illustrated through his family, was that the immigration framework that governs today was built in the 1960s and “does not reflect our economy, does not reflect our demographics, and does not reflect – above all – our values.”

The executive orders that President Obama announced six months ago included the DAPA and expanded DACA programs. 25 states sued the Department of Justice, refusing to allow the programs to proceed. A federal judge in Texas stayed the orders and the Fifth Circuit listened to oral arguments last month.
Director Rodriguez was very encouraged, despite the current state of dormancy for the programs. He claimed that USCIS is ready to implement the programs once the stay is lifted. He called on opponents of Obama’s executive orders to propose legitimate and workable solutions for immigration reform. The Director called the executive orders the “path to actual reform” and believes only Congress can pass legislation for undocumented immigrants to have a path to citizenship and that would represent real reform.

DACA In State College Tuition

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A judge in Maricopa County Arizona ruled on May 5 that immigrants granted deferred deportation status are eligible for in-state college tuition. This is a state court decision that will save thousands of dollars for DREAMers attending Maricopa County Community Colleges. Arizona is often the arena for contentious immigration litigation and legislation. Maricopa County is also the home of famed anti-immigration  Sheriff Joe Arapaio. This ruling could set a precedent for other schools and other states to level in-state tuition for their students with deferred action.

The basis of Superior Court Judge Arthur Anderson’s decision is that federal law determines who is lawfully present in the United States. Arizona has a voter-enacted law, Proposition 300, which demands that individuals seeking a federal, state, or local public benefit must submit specific documentation to prove lawful presence in the United States. There are also prohibitions from Arizona’s controversial SB1070 law, which was largely but not entirety stricken down by the United States Supreme Court.

The DREAMers have been clamoring for comprehensive immigration reform that will grant them a pathway to citizenship, as long as they meet certain requirements. Their argument is that they were brought to the United States as young children and have grown up knowing themselves to be Americans. Many DREAMers are unaware of their status until they start applying for colleges and realize that they do not qualify for scholarships and federal benefits because of their status.

Deferred action is not immigration status that grants green cards or a path to citizenship. It is a temporary allowance of authorized stay without many benefits. Individuals can obtain work authorization. Deferred Action for Childhood Arrivals (DACA) was announced on June 15, 2012 and is available for periods of two years. Expanded DACA and Deferred Action for Parents of Americans (DAPA) are being challenged by 26 states in Texas v. United States. The case is currently awaiting a decision in the Fifth Circuit after a federal judge in Texas blocked implementation of the programs because they were announced without following the Administrative Procedural Act’s Notice-and-Comment.

5th Circuit Hears DACA/DAPA

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The US Court of Appeals for the Fifth Circuit heard the Department of Justice’s appeal of the temporarily blocked expanded DACA and DAPA programs last Friday. A judge for a Texas federal court blocked expanded DACA and DAPA in February, and he blocked requests for lifting the order. The Circuit is expected to deliver a ruling soon. Observers expect a 2-1 ruling on behalf of the State of Texas, who brought the lawsuit against the Department of Justice.

 

We have been following this case closely over the past two months. We have keenly followed President Obama’s executive actions, which are not meant to be permanent solutions. Congress has lawmaking ability through the separation of powers of Article I of the Constitution. The president has the authority to issue executive orders, which every president has done and every president since Dwight D. Eisenhower has issued executive orders to grant relief to immigrants.

 

Expanded DACA grants deferred action to a wider range of individuals than the original version of DACA does. DACA is still in effect and can be applied for today. Expanded DACA tacks on a third year and eliminates the age requirement. DAPA is deferred action for parents of US citizen or Permanent Resident children. Neither DAPA nor DACA provide a pathway to citizenship or Green Cards. The underlying goal of US immigration is family reunification and these executive orders support that goal, especially in the absence of legislative enactments. The DREAM Act was first proposed in 2001 and remains on the legislative sidelines.

DACA/DAPA Stayed

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Judge Refuses to Lift Temporary Order Against Expanded DACA and DAPA

Judge Harlan of the Southern District of Texas decided against lifting his order from February, ensuring that the expanded DACA and DAPA programs remain unavailable. In February, the federal judge had blocked those two programs from going into effect, agreeing with plaintiff Texas that the president’s executive actions had not followed the proper procedure.

President Obama’s executive orders on immigration have been controversial, but his administration has argued they are necessary in response to congressional inaction on immigration reform. Immigration reform has been a prime legislative topic for years, but repeated attempts to pass laws have faltered. We have followed the news closely since the anticipation of executive action in the fall of 2014. The executive orders are widespread, covering everything from L-1B visa guidance to National Interest Waivers for entrepreneurs. The orders receiving the most attention and currently in litigation are Expanded DACA and DAPA.

DACA has been instituted as a program since June 2012. Expanded DACA and DAPA were additions to bolster protections for individuals without status who are low priorities for removal. Expanded DACA starts the clock of physical presence and continuous residence from January 1, 2010, allows for three years of work authorization and removal protection, and eliminates the age requirement original DACA has. DAPA is for the parents of US citizens or Permanent Residents and would be a boon for families in which a parent or parents are unauthorized. The clock of physical presence and continuous residence also starts from January 1, 2010 for that program.

The US Court of Appeals for the Fifth Circuit is expected to hear the appeal next week. The mayors of 73 cities and counties, 109 immigration law professors, advocacy groups, 181 members of Congress, 15 states and Washington DC have filed their amici briefs in support of the Department of Justice, which is defending the programs.

We will provide more news next week, as the case develops.