Update on DAPA and Expanded DACA

In November of last year, President Obama announced a series of immigration policy changes.  Many of the changes, relating primarily to employment-based immigration, were uncontroversial and are going forward as planned.  For example, the administrative process for granting permanent residency (“green cards”) for certain workers is being streamlined to avoid backlogs in processing these applications.  In addition, the President directed USCIS (United States Citizenship and Immigration Services) to issue a memorandum clarifying what types of “specialized knowledge” applicants for L-1B nonimmigrant petitioners need to demonstrate.

Two of the provisions announced in November have met significant opposition.  The first is the expansion of DACA, or Deferred Action for Childhood Arrivals.  DACA currently allows non-citizens who were brought to the United States as children, and who meet all other program requirements, to be granted lawful presence in the U.S. for a renewable period of two years.  Being granted DACA allows the recipient to live without fear of removal, and makes work authorization available for the two-year period.  The expansion of DACA would increase the renewable time period of lawful presence to three years.  It also seeks to eliminate the requirement that the candidate be born before June 15, 1981, thereby enlarging the pool of eligible applicants.  It is important to note that under neither form is DACA a grant of lawful permanent residence or “asylum” of any kind.

The Executive Action also created a new program, entitled Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA (initially called Deferred Action for Parental Accountability).  DAPA would also grant lawful presence and eligibility for work authorization for up to three years, but to parents of U.S. Citizen or Lawful Permanent Resident children.  The qualifying son or daughter must have been born on or before November 20, 2014, when the announcement was made, and the parent must have been continuously present in the United States since before January 1, 2010.  As with DACA, other qualifications apply, including successful completion of a background check.  It is estimated that over four million people qualify to receive DAPA benefits.

The States Respond

Within hours of President Obama’s announcement last November, Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision is currently on appeal.

Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States. The states sought an injunction to stop the implementation of DAPA and the DACA expansion.  Texas based its standing to challenge the policy on the alleged harm the state and its citizens would suffer if DAPA were put into place.  Texas currently uses taxpayer funds to supplement the cost of issuing driver’s licenses.  The theory was that since DAPA would entitle recipients to obtain licenses, Texas would either have to spend millions of dollars subsidizing licenses for non-citizens, or completely restructure their fee system.  The court agreed this was a specific potential harm that qualified the petitioning states the power to bring the suit against the federal government.

Texas’s injunction request took the position that the President’s executive actions were implemented improperly, and should be halted before such a harm could occur.  Specifically, they claim the President and the Department of Homeland Security (DHS) violated the Administrative Procedures Act (APA).  The APA requires that substantive or legislative rule changes be posted in the Federal Register, and that a period for public comment must be specified before implementation.

DHS maintains its position that both DAPA and DACA programs constitute forms of prosecutorial discretion and therefore are not procedural or substantive rule changes.  They are policies under which DHS has the discretion to approve individual applications where eligibility guidelines are met or to deny individual applications where there are national security or public safety concerns.  Further, the regulation of immigration is and has historically been exclusively within the purview of the federal government.

On February 16, 2015, two days before USCIS was scheduled to begin accepting applications for the expanded DACA program, a preliminary injunction was granted by Judge Andrew S. Hanen of the Southern District of Texas.  The injunction has a nation-wide scope, signifying that the programs at issue cannot begin until a full hearing on the merits can be held.

A week after the injunction was issued, the U.S. and DHS appealed and requested a stay of the injunction (which would have stopped the injunction and allowed the programs to begin, pending a merits hearing).  The appeal was denied.  The administration then appealed to the U.S. District Court of the Fifth Circuit (in Texas), but the stay was again denied.  The panel of the District Court upheld the injunction by a vote of 2-1.  Writing for the majority, Judge Smith explained, “DAPA’s version of deferred action [] is more than nonenforcement: It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”

Shortly after the administration’s appeal was filed, the Fifth Circuit issued a significant decision with implications for Texas v. United States.  It unanimously dismissed Crane v. Johnson, a separate lawsuit challenging the original DACA program by the State of Mississippi and several ICE officers. That Crane decision sets a precedent that undermines the Texas plaintiffs’ arguments, by rejecting the Crane plaintiffs’ standing arguments under “especially rigorous” scrutiny, and recognizing that not only DACA but also DAPA and expanded DACA require case-by-case adjudication.

Currently, expanded DACA and DAPA, which both would have been in full effect at this point, are essentially on hold.

The President and DHS Did Not Stand Alone

While Texas and others sought to enjoin the implementation of DAPA, plenty of states, politicians, and humanitarian and community groups showed strong support for President Obama’s executive actions.  Numerous amicus briefs were filed in support of the U.S. in the suit, including one brief representing fifteen states and the District of Columbia.  One-hundred eighty-one members of the U.S. House of Representatives showed their support this way, along with over 150 organizations, seventy city officials, and thirty chiefs of police or sheriffs.

What is Next for DAPA and DACA?

The Fifth Circuit District Court will hold a full hearing on the merits of the United States’ appeal of the injunction that is blocking DAPA and the expanded DACA implementation.  The hearing is scheduled for July 10, 2015.

For now, USCIS is urging those who feel they may qualify for DAPA or the expanded DACA program to begin gathering the documentation they will need when they are able to file a petition under one of the programs.  Necessary documentation includes identification, proof of continuous residency in the U.S. for at least five years, and for DAPA, proof that one has a U.S. citizen or legal permanent resident child who was born on or before November 20, 2014.  If you think you may qualify for DACA or DAPA protection, this is a good time to begin seeking out a reputable immigration attorney who can help you through the process when it becomes available.