EFFECTS OF 5TH CIRCUIT’S DECISION ON EXPANDED DACA AND DAPA EXECUTIVE ACTIONS
On May 26, 2015, the 5th Circuit Court of Appeals denied the government’s request to lift an injunction currently placed on President Obama’s expanded executive action programs known as DACA/DAPA. Essentially, this means removal proceedings will still continue against people otherwise eligible for the expanded programs’ benefits. Most of these people include undocumented parents of United States citizen-children. At this point, the future of the program is unknown. More importantly, its overall constitutionality is called into question.
In June 2012, under the directive of President Obama, the Department of Homeland Security issued a memorandum in which immigration officials must refrain from deporting certain undocumented aliens. The process, known as deferred action (or DACA) would not – and has – granted any immigration status to those who apply. Rather, it simply prevents immigration officials from initiating removal proceedings against these people. In essence, these people are on a hiatus from any immigration action. So long as a qualified person submitted an application and was granted deferred action, he or she could apply for a work permit and remain in the United States. A qualified DACA recipient must meet the following:
- Came to the United States under the age of 16;
- Is currently under the age of 30;
- Continuously resided in the United States for at least 5 years prior to June 15, 2012 and currently present in the United States;
- Graduated high school, obtained a GED, is currently in school or has served honorably in the United States military; and
- Has not been convicted of a felony, significant misdemeanor, multiple misdemeanor offenses or otherwise be a threat to national security.
As of to date, hundreds of thousands of young men and women have applied for DACA, and most have been accepted. Accepted applicants can reapply every two years, so long as they stay out of serious trouble. This has allowed many young people to obtain lawful work status and live without a constant fear of deportation.
In February 2015, two expansions to the current DACA program were supposed to go into effect. The expansions were thereafter referred to as expanded DACA and DAPA. First, the expanded DACA bumped up the continuous residency date to January 1, 2010, authorized 3 year work permits and eliminated the 30 year old age cap. Second, the DAPA expansions allowed certain undocumented aliens to apply for a new program if they met the following:
- Be the parent of a US citizen or lawful permanent resident;
- Continuously resided in the United States since January 1, 2010 and physically present as of November 20, 2014;
- Have no lawful status;
- Are not an enforcement priority; and
- Present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.
The expanded DACA/DAPA was supposed to address the inequities under immigration laws which discourage family unification. Just as it was unfair to punish young men and women who were brought to the United States as children when it was not their choice, so was it unfair to punish United States citizen-children by deporting their otherwise lawfully-acting undocumented parents.
At the same time, the expanded DACA/DAPA program was supposed to prioritize detaining and deporting the most serious criminal and immigration violators. This new enforcement policy was meant to save time and resources of CPB and ICE officials. Surprisingly, the expanded DACA/DAPA’s new enforcement priorities still remain in effect, despite the 5th Circuit’s ruling. Thus, the government’s new guidelines for detaining and deporting certain undocumented aliens will continue. This means that people otherwise eligible for the new programs who have been convicted of crimes such as DUI may be deported unless they qualify for a very limited form of immigration relief or discretion.
To date, 26 states have filed federal lawsuits to prevent the programs from going into effect. The states argued that the expanded programs were illegal and imposed a significant burden on them. One of the most pivoted states to fight the original and expanded program(s) has been Texas. Right before applications under the expansions were supposed to take place, an injunction was ordered by a federal judge in Texas. The government appealed the decision and as of May 26, 2015, the injunction has been upheld. Even conservative estimates show that up to 3-4 million undocumented aliens could have benefited from the expanded policies. Most of these people reside in the southern states, like Texas.
It is important to note that the current ruling does not affect the old DACA program. Those eligible under the old DACA program can still apply and receive deferred action. If you believe you qualify for the old DACA program, or have concerns regarding eligibility for the new programs – should the injunction be lifted – be sure to consult an attorney immediately before immigration officials contact you.