What is going on with Executive Action?

What is going on with Executive Action?

It has been a whirlwind month for immigration as this country continues on its indecisive course on immigration law and policy.  We try to make sense of the goings-on:

What is the status of Judge Hanen’s ruling?


As you recall, on February 16, 2015, Judge Andrew Hanen of the U.S. District Court of Brownsville, Texas issued a nationwide injunction stopping the Obama administration from implementing executive action reforms, DAPA and expanded DACA.  After the administration hemmed and hawed for a few days and seemed to be caught napping by the order, the Justice department filed an appeal of the stay and asked Judge Hanen to reconsider the stay.  Under the rules of the Court, the Judge gets a chance to reconsider his stay before an appeal will be heard by the U.S. Court of Appeals for the Fifth Circuit.  Yesterday, March 9, 2015, Judge Hanen issued an order stating that he would not reach a new decision until he has held a hearing, which is to occur on March 19.  Judge Hanen appears to be concerned that the Citizenship & Immigration Service has issued employment authorization documents (EAD) in three year increments to some DACA applicants.  Although these DACA applicants have DACA under its 2012 version, the three year EAD is an innovation of the November 2014 memos.

Can the Justice Department take this to the Fifth Circuit?

Yes, under Fifth Circuit rules, the government may now seek review at the 5th.

If only 26 states filed suit, how come Judge Hanen issued a nationwide injunction?

Judge Hanen may have overreached there.  He based his decision largely upon the impact that EA grantees would have on Texas’ costs in issuing driver’s licenses.  The Judge accepted Texas’ TX DLevidence that issuing driver’s licenses to EA grantees would be a net financial loss for Texas.  Of course, the Judge’s decision did not take into account new tax revenue and other economic benefits that have been forecast as arising as a result of EAIn fact, another group of states has sought to intervene in the lawsuit, arguing that they are being economically harmed by the suspension of the EA program.

What about Congress?

Republicans in the House of Representative tied funding for the Department of Homeland Security to elimination of DACA and DAPA.  The Senate refused to pass the House’s version of the Homeland Security and the nation faced this possibility of a shutdown of DHS.  Finally, the House relented and passed a Homeland Security funding bill that did not address DACA and DAPA.  The Senate passed the bill and the President signed it ten minutes before money ran out for DHS.

Is there any other litigation?

Angry Arpaio

Joe Arpaio

Yes.  Self-proclaimed America’s Toughest Sheriff, Joe Arpaio also filed a lawsuit against executive action.  That case was promptly dismissed by the U.S. District Court for the District of Columbia.  The U.S. Court of Appeals for the District of Columbia has scheduled a hearing on Arpaio’s appeal on May 4.

What has immigration enforcement been like on the ground during this period?

Shortly after Judge Hanen ruled last month, reports began surfacing that ICE was no longer exercising discretion not to proceed with enforcement activities against potential DACA or DAPA beneficiaries.  Ok, that was some serious legalese; let me try again: ICE is removing the non-criminal parents of U.S. citizens and those who qualify for expanded DACA!  Although the American immigration Lawyers Association received a communication from ICE that they have not changed their policies as a result of the judge’s ruling and the president expressly stated on MSNBC that enforcement should not proceed against potential EA beneficiaries, reports from the field have contradicted this.



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