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Injunction over DAPA and DACA expansion continues

March 20, 2015
Minsky, McCormick & Hallagan

USCIS has stopped issuing 3-year DACA approvals

The uncertainty and delay over President Obama’s Deferred Action programs continue.

Background

On February 16, 2015, a Federal Judge for a District Court in Texas granted a request for a temporary injunction against the implementation of the Deferred Action for Parents of Citizens and Residents (DAPA) and the expansion of the Deferred Action for Childhood Arrivals (DACA) announced by President Obama on November 20, 2014. The injunction has effectively halted implementation of DAPA and expanded DACA.

Click here to read about the difference between DACA as it has existed since 2012 and the newly announced DACA expansion that is the subject of this lawsuit.

Click here for the full text of the Texas v. United States ruling.

As a result of the injunction, U.S. Citizenship and Immigration Services (USCIS) did not start accepting applications for the expansion of DACA on February 18, 2015, as it had originally planned, and absent a favorable court ruling prior to May 2015, USCIS will also delay implementation of the DAPA program.  On February 23, 2015, the Department of Justice asked the District Court to lift the injunction and allow USCIS to move forward with implementing the programs. The judge has said that he will not rule on that Department of Justice request until at least March 19th. See our previous blog on this lawsuit here.

What is happening with the lawsuit now?

The Department of Justice, on March 12, 2015, filed an emergency motion for a stay, which, if granted, would allow USCIS to implement the affected programs while it appeals the District Court’s ruling. The Department filed the motion with the Fifth Circuit Court of Appeals, which has jurisdiction over the District Court in Texas. The Department is hoping that the Fifth Circuit will rule that USCIS can begin implementing expanded DACA and DAPA nationwide, or at a minimum, either in states outside of Texas, where the lawsuit was brought, or in the other states that did not sign onto the lawsuit.

Why did some people get DACA approvals for 3 years and my recent DACA approval is just for 2 years?

Despite the delay for DAPA and the expansion of DACA, the DACA program, as it has existed since 2012, continues. However, this injunction has affected individuals under the 2012 DACA guidelines.

Initially, after the November 20, 2014 announcement, USCIS began to issue DACA and work authorization approvals in three year increments, as opposed to the two year increments it had been issuing prior to the announcement. According to the Department of Justice, approximately 100,000 individuals received such approvals. The Department has since informed the District Court of the three-year approvals, contending that they are consistent with the terms of the November guidance. Although USCIS has since returned to only issuing two year approvals, it has stated that it will not revoke any of the three year approvals for deferred action and work authorization already granted. Both parties to the lawsuit were scheduled to address this issue at a District Court hearing on March 19, 2015.

Does the February 16th order affect enforcement priorities?

No. U.S. Department of Homeland Security Secretary Jeh Johnson has indicated that the priorities announced in his November 20, 2014, memorandum remain in full force. Based on those priorities, the Department of Homeland Security will focus on deporting individuals who are a threat to public safety, national security, and border security. For the full text of the memorandum, click here.  However, many Immigration and Custom Enforcement (ICE) offices have stated that eligibility for DAPA or expanded DACA will no longer be a reason for its attorneys to continue a case or exercise prosecutorial discretion. While individuals seeking prosecutorial discretion for their immigration case can continue to rely on the November 20, 2014 enforcement priorities memorandum, they can no longer base their arguments for favorable discretion on potential DAPA or expanded DACA eligibility.

If you have questions about DACA or DAPA, please contact the attorneys at Minsky, McCormick & Hallagan, P.C.

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