Federal court issues injunction blocking DAPA and expanded DACA

On February 16, 2015,  a Texas federal judge issued a temporary injunction against the implementation of President Obama’s Deferred Action for Parents of Citizens and Lawful Permanent Residents (DAPA),  and the expansion of the Deferred Action for Childhood Arrivals (DACA).  The injunction “enjoins the United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, Secretary of the Department of Homeland Security;  the United States Customs and Border Protection;  the United States Immigration and Customs Enforcement; and the United States Citizenship and Immigration Services – from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program as set out in the Secretary of Homeland Security Jeh Johnson’s memorandum dated November 20, 2014 (“DAPA Memorandum”);  any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals (“DACA”) program as outlined in the DAPA Memorandum.”

Twenty-six (26) States filed a federal lawsuit to stop President Obama’s immigration initiatives announced last November 20, 2014 – specifically the DAPA and the DACA expansion (State of Texas, et al v. U.S.A, 2/16/15).   The Plaintiffs include the States of Texas; Alabama; Arizona; Arkansas; Florida; Georgia; Idaho; Indiana; Kansas; Louisiana;  Montana;  Nebraska; Nevada;  North Dakota; Ohio; Oklahoma; South Carolina; South Dakota; Tennessee;  Utah; West Virginia;  Wisconsin;  the People of Michigan; Governor of Mississippi; Governor of Maine; Governor of North Carolina; and Governor of Idaho.

The injunction affects an estimated 3-6 million people who are expected to file applications for  deferred action and employment authorizations,  under either the DAPA or the expanded DACA.   The DAPA covers undocumented parents of U.S. citizens or legal permanent residents. On the other hand, the expanded DACA covers undocumented persons who entered the United States as children under age 16 before January 1, 2010 (instead of June 15, 2007 under the existing DACA program established in 2012); removes the age cap of 31 years old (the existing DACA requires applicant to be under 31 years old as of June 15, 2012 – the expanded DACA removes the age cap as long as applicant entered under age 16 before January 1, 2010);  and grants deferred action and employment authorization  for a period of 3 years instead of 2 years.

Reacting to the federal injunction, Department of Homeland Security (DHS) Sec. Johnson announced on February 17, 2015 that the Department of Justice will appeal the temporary injunction but DHS will delay implementation of the expanded DACA which is supposed to start on February 18, 2015;  and the DAPA which is supposed to start in May 2015.  “Accordingly, the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned.  Until further notice, we will also suspend the plan to accept requests for DAPA.”

Sec. Johnson emphasized that the federal Court’s injunction does not affect the existing DACA program and DHS will continue to receive and process applications for initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012.  However, applicants  for deferred action under the existing DACA must not be a priority alien as identified in the Johnson  Memorandum of November 20, 2014.

Sec. Johnson clarified  that the “enforcement priorities established in his November 20, 2014 Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants remain in full force and effect”.   In that Memorandum, Sec. Johnson identified 3 groups of high priority aliens who are subject to immediate apprehension, detention and removal:   Priority 1 Aliens  –  aliens who are threats to national security, border security, and public safety;  Priority 2 Aliens  – aliens convicted of 3 or more misdemeanor offenses, arising out of three separate incidents; and aliens convicted of a “significant misdemeanor” like domestic violence,  sexual abuse or exploitation,  burglary, unlawful possession or use of a firearm,   drug distribution or trafficking, DUI, or those sentenced to jail of 90 days or more);  and  Priority 3 Aliens  – those who have been issued a final order of removal  on or after January 1, 2014.   What this means is DHS will continue to prioritize the immediate apprehension, detention and removal of aliens who belong to any of the 3 groups identified in his Memorandum.

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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].