By Allen E. Kaye
Following is a statement by the White House on the district court preliminary injunction on lawsuit challenging expanded DACA and DAPA, stating that the “decision wrongly prevents these lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.”
“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws – which is exactly what the President did when he announced commonsense policies to help fix our broken immigration system. Those policies are consistent with the laws passed by Congress and decisions of authority to set priorities in enforcing our immigration laws.
The Department of Justice, legal scholars, immigration experts, and the district court in Washington, D.C. have determined that the President’s actions are well within his legal authority. Top law enforcement officials, along with state and local leaders across the country, have emphasized that these policies will also benefit the economy and help keep communities safe. The district court’s decision wrongly prevents these lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.”
Following are statements by Jeh C. Johnson, head of DHS, concerning the District Court’s ruling concerning DAPA and DACA.
“I strongly disagree with Judge Hanen’s decision to temporarily enjoin implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it.
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.
The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do.
It is important to emphasize what the District Court’s order does not affect.
The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012.
Nor does the Court’s order affect this Department’s ability to set and implement enforcement priorities. The priorities established in my November 20, 2014 memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” remain in full force and effect. Pursuant to those enforcement priorities, we continue to prioritize public safety, national security, and border security. I am pleased that an increasing percentage of removals each year are of those convicted of crimes. I am also pleased that, due in large part to our investments in and prioritization of border security, apprehensions at the southern border – a large indicator of total attempts to cross the border illegally — are now at the lowest levels in years.”
WASHINGTON, DC -The American Immigration Lawyers Association (AILA) issued the following statement from its President Leslie A. Holman regarding the decision by Texas federal judge Andrew Hanen to grant the request for 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) initiative.
“Previous statements by Judge Hanen made it clear that he was pre-disposed against favorable exercises of prosecutorial discretion in the immigration context. Today he affirmed that pre-disposition by temporarily enjoining decision-making in the expansion of DACA and the implementation of DAPA.
“Thus, there is nothing surprising in the fact of the injunction. What is surprising, given this judge, is the narrowness of the ruling. His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.
“AILA fully expects the federal government to immediately appeal this ruling and to request a stay of the injunction throughout the appeal process so that the initiatives aren’t stalled. AILA is confident the federal government will ultimately prevail and that DAPA and expanded DACA will be fully implemented.
“In the meantime, AILA recommends that individuals who are potentially eligible for expanded DACA or DAPA begin preparing to apply: they should begin gathering the necessary documentation and seek good counsel to give themselves the best chance for success and to avoid potential problems. Importantly, they must be wary of ‘notarios’ who offer legal advice without a license that is unethical and fraudulent.
“Also important to note is that those who were granted DACA already are in no way affected by this ruling so they should apply for their DACA renewal as planned. This ruling only delays the start of DAPA and the expansion of DACA.
“I know that despite this ruling we will continue to make the case that our country deserves an immigration system that works – for families, for businesses, and for the entire nation,” concluded Ms. Holman.
Late Monday night, February 16, Judge Andrew Hanen issued a temporary injunction against the implementation of the Obama Administration’s executive actions on prosecutorial discretion in immigration, known as DAPA and expanded DACA.
There is nothing surprising in the fact of the injunction. What is surprising, given this judge, is the narrowness of the ruling.
Judge Hanen’s prior statements show that he was pre-disposed against favorable exercises of prosecutorial discretion in the immigration context.
The judge adopts fairly extreme rhetoric betraying his pre-disposition to rule against the government: He cites the government’s “failure to secure the borders” and then adopts the plaintiffs’ assertion of purported costs to the states without any evidence in the record. His entire holding on whether there is significant economic impact to justify standing turns on a ludicrous focus on the rather questionable asserted costs of issuing drivers licenses in Texas.
The Texas judge’s decision disregarded information submitted by the government and amici (including AILA) as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide. Judge Hanen gave credence only to the alleged and unsubstantiated costs and harms to the states, and relied on only one relatively minor cost to one state.
Throughout his findings of APA violations, the judge ignores the fact of an existing rule that covers DACA and DAPA: 8 CFR section 274a.12(c)(14), which provides for work authorization for “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.” Authority on prosecutorial discretion remains. Importantly the court affirmed the executive branch’s prosecutorial discretion. pp 69 and 83
His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act that are not there. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.
What Happens Now
AILA expects the federal government to appeal this ruling.
AILA is confident the federal government will ultimately prevail and that DAPA and expanded DACA will be fully implemented.
In the meantime, AILA recommends that individuals who are potentially eligible for expanded DACA or DAPA begin preparing to apply: they should begin gathering the necessary documentation and seek good counsel to give themselves the best chance for success and to avoid potential problems. Importantly, they must be wary of ‘notarios’ who offer legal advice without a license that is unethical and fraudulent.
Also important to note is that those who were granted DACA already are in no way affected by this ruling so they should apply for their DACA renewal as planned. This ruling only delays the start of DAPA and the expansion of DACA.
Lawsuits against similar executive actions on immigration have failed in the past. A similarly politically motivated lawsuit was thrown out in December when Sheriff Joe Arpaio argued that Obama’s announcements were unconstitutional.
In 2012 Mississippi challenged the legality of the DACA program in a case similar to the 26-state lawsuit, but the case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative. In fact, studies have shown that the deferred action initiatives are not just the morally right thing to do but economically beneficial to our country.
Allen E. Kaye, a Phi Beta Kappa graduate of Queens College of the City of New York, Colombia Law School (JD) and New York University Law School (LLM), is the President of the Law Offices of Allen E. Kaye and Associates and Of Counsel to Pollack, Pollack, Isaac and DeCicco. He is a past National President of the American Immigration Lawyers Association and Co-Chair of the Immigration Committee of the Queens County Bar Association. He has been selected by Martindale-Hubbell as a 2014 “Top Rated Lawyer” in the practice of Labor and Employment (for Immigration).
Questions for publication may be sent to Mr. Kaye at 225 Broadway, Suite 307, New York, N.Y. 10007 or by email at [email protected] or [email protected].
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