1857820By Jeremy Love, Immigration Attorney
June 01, 2015

On Tuesday May 26, a three-judge panel in the Fifth Circuit Court of Appeals denied the US Department of Justice request for an emergency stay of the Texas District Court’s decision to halt President Obama’s November 2014 affirmative actions on immigration.

The court ruled 2-1 against the federal government who requested that Obama’s Deferred Action for Parents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) be allowed to go into action while the appeal was pending.

In its decision, Judge Jerry Smith stated that the states were able to show financial burden if the affirmative actions were allowed to begin.  This decision contradicts a prior decision by the same court regarding the state of Mississippi, in which the court ruled that no injury to the states was apparent. The federal government and immigration rights activist groups have shown that the overwhelming weight of the evidence proves that states would benefit from increased tax revenues and reduced deficits.

What is at stake?

Obama announced in 2014 an affirmative action including DAPA, which would allow millions of undocumented immigrants who have US citizen and legal permanent resident children to live without fear of deportation and apply for work permits.

Obama also announced an expansion of the popular DACA program which has allowed 700,000 immigrants who came to the US as minors and graduated from school, are enrolled in school, or served in the military to obtain work permits and pursue careers in the US that they might not have otherwise had the opportunity.

The expansion of DACA would allow potential applicants who have been in the US since 2010 as well as those who were born before June 15, 1981 to apply as long as they were in the US before turning 16 and have no serious criminal record and do not pose a threat to national security. 

Does this decision affect DACA?

No, this decision only affects DAPA and expanded DACA. It does not affect current DACA recipients, pending applicants or those who have not yet filed as long as they are eligible for DACA pursuant to the 2012 announcement.

What happens now?

While it is disappointing that DAPA and expanded DACA will continue to be delayed, this decision does not affect the merits of the appeal, which is expected to begin with oral argument in early July.  The merits case could be heard by a different panel of judges than the one that ruled on the stay.

There is also a decision expected by Judge Hanen in Texas regarding the constitutionality of the executive action on immigration.  However, Judge Hanen has already shown his political stance against Obama’s immigration policies.

The appeals court process in New Orleans will likely take months to receive a decision and regardless of the ruling on the merits, either side could appeal to the US Supreme Court.

It is my firm belief that Obama’s actions on immigration were constitutional and we are simply riding the waves made by political parties in their battle over immigration.

Court decisions such as this show that the solution to our country’s flawed immigration system is a broader, permanent immigration reform that allows a path to citizenship.