What is happening in Texas? Will there be a stay of the stay?

What is happening in Texas?  Will there be a stay of the stay?

5th cir

While the junior senator from Texas dominates the news, we remain more concerned about what is happening in a court house in Texas and another in New Orleans– the U.S. District Court in Harlingen where Judge Andrews Hanen sits and the U.S. Court of Appeals for the Fifth Circuit which must hear the Department of Justice’s emergency appeal of Judge Hanen’s injunction against DAPA and expanded DACA.

To recap, 26 states, led by Texas, sued the Obama administration for its attempted imposition of deferred action for the parents of U.S. citizens and expanded DACA eligibility.  They chose to bring the suit in Harlingen in the expectation that they would get Judge Hanen to be assigned to the case.  Last month, Judge Hanen issued a nationwide injunction prohibiting the administration from implementing DAPA and expanded DACA.

It took about a week, but the Justice Department asked Judge Hanen to reconsider his injunction.  When Judge Hanen did not rule in a week, the Justice Department asked the B.injunctionU.S. Court of Appeals to grant an emergency stay of the stay.  The government has also appealed the injunction.  So, the government has sought two different things from the Court of Appeals: (1) an emergency, immediate and temporary stay of Judge Hanen’s stay, allowing the government to proceed with DAPA and expanded DACA while the case continues; and (2) a permanent reversal of Judge Hanen’s injunction.

In regard to the emergency stay, the states’ brief is due on March 23.  The Justice Department has asked the Court of Appeals to rule by Friday March 27.  They don’t have to do that, but we will be on the lookout. In regard to the appeal of the injunction, that case will take several months and probably would not be ready for a decision before June.  Thus, if the emergency stay is not granted by the Fifth Circuit, it is likely that DAPA and expanded DACA will be on hold for several more months while the legal battles continue.

In addition, there is another sideshow going on.  After the November announcement of executive action, the administration began issuing DACA extensions for three year periods.  This period was an innovation of the November memos as DACA extensions under the original DACA provisions were only to be valid for two years.  Judge Hanen is now quite upset with the Justice Department for telling him that the November memos had not been implemented at the time he held oral arguments in January.

Finally, while these proceedings wind their way through the courts, ICE has rounded up thousands of individuals who would have qualified for DAPA and removed them despite the stated policy of discretion and intelligent use of resources.


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