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Fifth Circuit Says “No Go” to Two of President Obama’s Immigration Executive Actions

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Guest author: Anna Marie Gallagher

AMGallagherOn November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit upheld a Texas district court’s injunction blocking the Obama Administration from implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expanded version of Deferred Action for Childhood Arrivals (DACA). It is widely anticipated that the decision in Texas v. United States will be appealed to the United States Supreme Court.

DAPA is one of a series of executive actions announced by President Obama on November 20, 2014, to benefit undocumented parents of U.S. citizen and lawful permanent resident children. The proposed program would provide these parents the ability to remain in the United States with employment authorization for a period of three years. To qualify, they will have to prove that they have five years of residence in the United States and that they are not enforcement priorities under Department of Homeland Security (DHS) guidelines. An estimated 4.1 million individuals would qualify for this program if the United States Supreme Court overturns the Fifth Circuit’s decision.

The November 20, 2014, executive action also called for the expansion of DACA to qualifying applicants regardless of their age at the time of application. DACA provided deferred action and employment authorization to hundreds of thousands of young undocumented men, women, and children who came to the United States prior to their sixteenth birthdays. The proposed expansion removes the age cap on the filing deadline, among other things.

As background, in December 2014, governors and attorneys general from twenty-six states sued the government to stop the implementation of DAPA and the expanded version of DACA. A number of states, cities, police chiefs, and immigrant advocates filed amicus briefs against the lawsuit, arguing the significant benefits that will result from the implementation of DACA and DAPA. On February 16, 2015, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction preventing the Administration from implementing the programs. In his ruling, Judge Hanen recognized that the government has the discretion to decide whom to remove from the country but found that the Administration must engage in notice-and-comment rulemaking before it can grant work authorization to proposed beneficiaries.

On February 23, 2015, the Department of Justice (DOJ) filed a motion for an emergency stay of the injunction while its appeal was pending, arguing that the injunction would cause irreparable harm to the Department of Homeland Security. DOJ argued that the injunction prevents DHS from prioritizing its limited enforcement resources to focus on serious security threats and that it undermines the significant work done by the agency to prepare for implementation of the programs. It also argued that DACA and DAPA are necessary to help local law enforcement make their communities safer. The motion for the stay of the injunction was denied in May 2015. DOJ’s appeal relating to the preliminary injunction filed on March 11, 2015, with the Fifth Circuit was denied on November 9, 2015, in a 2–1 decision.

The Fifth Circuit’s decision comes as a blow to the Obama Administration’s efforts to provide temporary relief to deserving individuals and to strengthen enforcement efforts against serious threats to the security of the United States. The lawsuit prevents millions of individuals who have been members of communities across the United States from coming out of the shadows and working on the books to contribute to our economy and to live without fear with their families and in their communities.

It is almost certain that the Supreme Court will accept the case, but the big question is when. For the matter to be heard this term, the Court must conference the case by end of January 2016. This means that all parties must submit their briefs by that date so the Justices and their clerks can properly review and consider them. Texas will have thirty days to respond to the filing and can request extensions. Given the tight timeframe, there is no guarantee that the Court will consider the petition during this term. If the petition is delayed, it will be kept alive through the presidential election, leaving it in the hands of the next administration. Hillary Clinton has stated in the past that she would expand on President Obama’s executive actions. If that is any indication of her position, it is likely that her administration will aggressively pursue the petition should she be elected. However, if a Republican wins, he or she will withdraw President Obama’s executive actions and the case will become moot.


Our thanks to Anna Marie Gallagher, a shareholder at Maggio + Kattar in Washington, D.C., for contributing this post to The Legal Advocate. Ms. Gallagher heads the firm’s immigration litigation practice and has practiced immigration, refugee, and human rights law for more than two decades in the United States, Central America, and Europe. She has taught immigration and refugee law in the United States and Europe, and is a frequent speaker and author on immigration topics. She may be reached at

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