On Tuesday, May 26, the Fifth Circuit Court of Appeals denied the government’s request for an emergency stay of the injunction issued by a Brownsville judge in February. That injunction stopped implementation of the expanded DACA and the DAPA programs that were already set to begin. The district court found that the plaintiffs – 26 states – had standing to bring the lawsuit and it found that the government had violated the Administrative Procedures Act (APA) in failing to publish regulations before implementing the programs. The appellate court ruled that the plaintiffs were likely to prevail in the lawsuit and therefore denied the government’s request for a stay and its request to narrow the scope of the injunction.
In response to this decision, Jeanne Atkinson, CLINIC’s executive director, issued the following statement:
“We are disappointed by the decision of the 5th Circuit Court of Appeals to uphold a temporary halt of the implementation of President Obama’s administrative relief. Not only does this news prolong the confusion experienced by eligible immigrants but it maintains an outdated system that compromises the unity of families and the prosperity of our communities.
The need for policies in line with our faith and our nation’s values remains. We are resolved to move forward – advocating for a permanent fix to the immigration system and preparing community programs to ensure access to the legal process at hand.”
The Basis of the Fifth Circuit Decision
The original district court based jurisdiction on the State of Texas’s claim that it would be required to issue drivers licenses to DACA and DAPA recipients and that it would spend approximately $130 more (per DACA/DAPA recipient) than it received in application fees to process them. Additionally, that court ruled that it had jurisdiction to review the orders establishing DACA and DAPA and to apply the APA’s notice and comment requirements. On May 26th, the appellate court agreed, finding that the granting of deferred action under DAPA was more than a discretionary act not to enforce the deportation laws against a designated group of persons. The grant of DAPA designates lawful presence and eligibility to federal and state benefit programs, the court reasoned, thus making it subject to review and APA requirements.
The government has already announced that it will not seek an appeal of the emergency stay denial. Instead, the government will proceed with its appeal of the preliminary injunction. Oral argument on that appeal is scheduled for July 10, 2015. Many of the same arguments that the government raised in the stay request will be ruled on in that appeal. If the government is unsuccessful in its appeal of the preliminary injunction, it will likely take that to a higher appellate court, including the Supreme Court.