DAPA Program for Undocumented Immigrants Stalled Again

The 5th Circuit Court of Appeals today delivered a not-so-surprising blow to the Obama Administration’s effort to widen the Deferred Action program announced in November 2014, almost a year ago. In a 2-1 decision, the Court held the executive order was unconstitutional.

The executive orders created a new Deferred Action program called Deferred Action for Parents of Americans, or DAPA, and expanded another, called Deferred Action for Childhood Arrivals, or DACA in an effort to reshape the U.S. immigration system after the 2014 midterm elections and a stalled Congress. Texas and 25 other states sued the United States soon thereafter, in an attempt to halt the executive actions.

In their decision, two judges sided with the states and the lower court in Texas, citing both the impact on Texas and the breadth of the Obama administration’s changes as reasons to uphold the injunction. “At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis,” wrote Judge Jerry Smith in his majority opinion.

The administration’s interpretation of the Immigration and Naturalization Act, Smith wrote, would effectively vest the Secretary of Homeland Security with the power “to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.” In other words, Smith wrote, “the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.”

The lone dissenter, Carolyn King, called for judicial restraint in what she defined as a policy dispute instead of a legal one. “Because the DAPA Memorandum contains only guidelines for the exercise of prosecutorial discretion and does not itself confer any benefits to DAPA recipients, I would deem this case non-justiciable,” she wrote. “The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.”

There are good odds the Supreme Court will accept an appeal but no guarantee. If it fails to hear the case, the 5th Circuit decision will stand and the injunction will indefinitely permit DAPA or expanded DACA from becoming reality. No doubt that this issue will become front and center stage in the Presidential election in 2016 if the Supreme Court does accept the case.

Contact Catherine Brown, Denver immigration lawyer for questions about the court battle over DAPA and DACA.