DAPA and Expanded DACA Blocked

UPDATE! The Supreme Court upheld the blocking of DAPA - read about the TSI ALTERNATIVE TO DAPA HERE.

On President's Day, February 16, 2015, federal judge Andrew S. Hanen issued a temporary Order in favor of the State of Texas, temporarily blocking the DAPA program and also blocking the expansion of DACA.  

What this means: For now, the judge's order blocks USCIS from "implementing any and all aspects or phases" of both the DAPA program, set to go into place by May 18, 2015, and also the expansion of the DACA program, which was set to go into effect February 18, 2015, and which would eliminate the age cap, move the residence date up to January 1, 2010, and extend work authorization from two up to three years.  That means, for now, the USCIS is prevented from putting any DAPA program in place, and also prevented from changing anything about the DACA program as it currently exists.  It does not affect the DACA program that has already been in place since 2012, so anyone who qualifies for the DACA program as currently in place is not affected by this court order.

Why this happened:  The Republican Texas Governor Greg Abbott filed a lawsuit against President Obama, seeking to stop DAPA and the expansion of DACA, claiming among other things that it would cost the State of Texas money to issue driver's licenses to DAPA and DACA recipients because the State charges less than the actual cost of the driver's licenses.  The Texas Governor was joined in the lawsuit by Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wisconsin, Michigan, Mississippi, Maine, and North Carolina.  The lawsuit was assigned to Andrew S. Hanen, a judge in the Southern District of Texas, where the lawsuit was filed.  Judge Hanen was appointed in 2002 by President George W. Bush.  

What will happen next: The order is preliminary and temporary, until the judge decides the case on the merits - in other words, until the judge has more time to hear all the arguments from each party and makes a final ruling.  The Obama administration has announced that it will appeal the temporary decision.  Many legal scholars hold the opinion that Judge Hanen's order will not be upheld (supported) by higher courts.  For now, however, the DACA program cannot expand - the age cap stays in place, the two year cards instead of three years stay in place, and the June 15, 2007 residence date stays in place instead of January 1, 2010.  Also, for now, the DAPA program is on hold.  The DACA program that was put in place in June 2012, however, is still in place and is not affected.  Individuals who are eligible for DACA and renewals of DACA under the 2012 program can continue to apply and receive benefits.  No benefits have been taken away.

Who supported the President's DAPA and DACA programs: The States of Washington, California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont and the District of Columbia filed amicus briefs in support of President Obama's programs.  The Mayors of New York City and Los Angeles, along with 31 other mayors also supported with a brief.

What could President Obama do: The President has already decided to appeal Judge Hanen's order.  The higher court, the Fifth Circuit Court of Appeal, and ultimately the Supreme Court, could decide the case differently.  

The President could also decide to use other methods to achieve the same purpose.  For example, the President could allow people who have been in the country for at least 10 years, and are the parent of an American citizen, to "turn themselves in" to be placed in deportation proceedings (now called removal proceedings), which would allow them to apply for "Cancellation of Removal" and get work permits while they await their hearing in front of an immigration judge.  Cancellation of removal is a form of relief an immigration judge can grant, if the person has been here 10 years, does not have certain criminal convictions and has been a person of good moral character, and establishes that deportation would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident.  If the judge finds those factors, the judge can adjust the status of the person to lawful permanent resident - a green card.  There are only 4,000 slots available each year, and if a judge decides to grant relief but there are no numbers, the case is just held until numbers are available.  If several million people were suddenly placed in removal proceedings as a result of a turn self in program, it would take many years, perhaps decades, for cases to be heard.  In the mean time, applicants for Cancellation of Removal would be able to apply for work permits.  Of course, taking any action such as turning oneself in for removal proceedings carries risk of deportation or prosecution, and should be undertaken only after receiving the advice of competent immigration counsel.  But this one example does show how there are other ways in which the President can accomplish the goals of DAPA without using deferred action.