Is DAPA dead?

Molina Law Group continues to monitor the federal lawsuit Texas v. U.S. that is attempting to stop the implementation of President Obama’s deferred action programs. The expanded DACA program was to begin accepting applications on February 18, 2015 and the DAPA program was to begin in May of 2015. However, on February 16, 2015 Judge Hanen issued a temporary injunction ordering that DACA II and DAPA not be allowed to go forward as planned. This order will stay in effect unless and until overturned on appeal or until a final decision is reached in the federal lawsuit.

The federal government quickly filed an appeal in the Fifth Circuit Court of Appeals in New Orleans with an emergency motion asking for the case to be addressed as soon as possible. The appeals court has set a hearing for the matter on April 17, 2015 and will decide either that day or soon after whether it will over turn Judge Hanen’s block of DACA II and DAPA. If the injunction is overturned USCIS will be allowed to start accepting DACA II applications. It is unclear when DAPA applications would be accepted.

After President Obama’s announcement regarding DACA II and DAPA on November 20, 2014, U.S. Citizenship and Immigration Services (USCIS) began issuing three-year work permits to individuals filing under the original DACA program. The original program only authorized two-year permits, however DACA II and DAPA would offer three-year programs, so USCIS began issuing three-year permits even before DACA II was to be implemented.

At an initial hearing earlier this year the federal government informed Judge Hanen that the government had not and would not move forward with DACA II or DAPA until the initial start date of February 17, 2015. On March 19, 2015 Judge Hanen scheduled a last minute hearing to address this issue.

The federal government filed a brief to inform Judge Hanen of the issuance of the three-year work permits in order to correct its previous assertion that they had not gone forward with the implementation of the programs. Judge Hanen was very angry and accused the federal government of attempting to conceal this information. He advised the parties that he would soon determine whether he would punish the federal government with fines.

In my opinion, the federal government did the right thing by bringing the issue to the judge’s attention. I don’t think they were giving three-year work permits to original DACA applicants with the intent to defraud the court. Judge Hanen’s over the top response to this issue (threatening to fine the federal government for this small issue?!), shows that he is fired up about this case and in my opinion I think he is leaning toward a permanent injunction to block DACA II and DAPA. If he does, that decision would most likely be appealed to higher courts.

President Obama intended to establish these programs to provide hope and security to hard working, law-abiding individuals who have resided in the U.S. since at least January 1, 2010. The plaintiffs in this lawsuit and their preferred choice of judge have effectively caused millions undocumented individuals across the U.S. to feel even more insecure than they felt before the announcement. Immigration and Customs Enforcement (ICE) has once again started detaining and deporting these low-priority individuals.

DACA II and DAPA may ultimately succeed. But this legal fight will likely be long and drawn-out. We continue to hope for the best while also continuing to prepare for alternative options for our clients. We encourage you to do the same.