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5th Circuit Upholds Injunction Related to Immigration Executive Actions

One year ago today, President Obama announced immigration Executive Actions which would have significantly improved our nation’s family and employment-based immigration system. The changes were to have gone into effect on February 18, 2015.  Since then, the Executive Actions have been postponed and then halted due to legal challenges. Their implementation is currently suspended.

On November 9, 2015 the Fifth Circuit Court of Appeals upheld a preliminary injunction which halts the Executive Actions that provide relief from deportation to around 5 million immigrants under two initiatives—Deferred Action for Parents of Americans (DAPA) and the extension of the President’s 2012 initiative, Deferred Action for Childhood Arrivals (DACA).  The 135 page decision from the Fifth Circuit was expected by most immigration advocates, who hope for a more favorable decision next year from the Supreme Court.

The DAPA program would allow the parents of US citizen or resident children to obtain temporary relief from fear of deportation and employment authorization if they can prove that they have lived in the United States continuously since January 1, 2010 up to the time that they apply for DAPA; that they were physically present in the United States on November 20, 2014; that they had no lawful status on November 20, 2014; and that they had on November 20, 2014 a son or daughter of any age or marital status who was a US citizen or permanent resident. Domestic security safeguards were also built in–would-be DAPA applicants must also prove that they have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, do not otherwise pose a threat to the national security; and are not an enforcement priority for removal.

The proof of employment authorization which DAPA was to provide is often the evidence needed to apply for a driver’s license in many states. As such, Texas is arguing that it will be harmed by the program because their state’s drivers license program operates at a fiscal loss of $130 per issued drivers license—the cost of which is offset or subsidized by the Texas taxpayer.

The White House announced that it will seek Supreme Court review, and advocates hope that the Supreme Court will accept the case and issue a decision before its term ends in June 2016. While the Fifth Circuit has indicated that it finds the President’s actions as an overreach of his powers as Chief Executive Officer of the Executive Branch, the District of Columbia, for example, takes the opposite position, having dismissed a similar suit filed by Arizona sheriff for Maricopa County, Joe Arpaio.

Because the Supreme Court has repeatedly held that the federal government is well within its executive authority to decide how to exercise its prosecutorial discretion, immigrant advocates remain hopeful that this attempt by the Fifth Circuit to stay the initiation of DAPA and the extension of DACA will fail, thus providing relief to millions of parents of U.S. citizens and residents throughout the United States who contribute socially, culturally and financially to our diverse national community. In a time of renewed focus on domestic security, it would also free up Department of Homeland Security resources to seek and apprehend individuals with serious criminal records or who pose a risk to domestic security.


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