A federal court injunction against key portions of President Obama’s executive action on immigration has put a halt to programs intended to help eligible non-citizens apply for temporary protection from deportation from the United States. (See Memorandum and Order in Texas v. United States, Civ. No. B-14-254 (S.D. Texas, Feb. 16, 2015)). The uncertainty caused by the injunction has both nonprofit legal services providers and private pro bono lawyers scrambling to reallocate scarce resources, even while most remain confident that the administration’s actions will ultimately be determined to be lawful.
Background on the President’s Executive Action
On November 20, 2014, President Obama announced a series of executive actions related to immigration. Among these initiatives were plans to expand the population eligible for the Deferred Action for Childhood Arrivals (DACA) program – which was originally limited to persons who were under the age of 31 as of June 15, 2012 – to people of any current age who entered the United States before the age of 16 and have lived in the United States continuously since January 1, 2010, and to extend the period of DACA and work authorization from two years to three years.
In addition, the President announced a new program – Deferred Action for Parents of Americans and Lawful Permanent Residents (formerly called Deferred Action for Parental Accountability) (DAPA) – which would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.
These are only the most prominent, and most controversial, of the administration’s executive actions on immigration. Also included are plans to expand the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens; to implement a number of business immigration initiatives; and efforts to promote citizenship education and public awareness for lawful permanent residents.
Basis and Scope of Injunction
A lawsuit filed by 26 U.S. states is seeking to bar the Obama administration from certain executive actions on immigration. The states contend that implementation of the DAPA and expanded DACA programs would have an adverse effect on the states, including, inter alia, harm flowing from the costs that would be associated in issuing driver’s licenses to persons granted deferred action under these two programs.
Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, Brownsville Division, preliminarily enjoined implementation of the DAPA and expanded DACA programs on the ground that the administration allegedly violated the Administrative Procedure Act by creating the programs without posting a notice in the Federal Register and soliciting comments from the public. The administration argues, and some experts have agreed, that the judge overreached in this decision in that programs like DAPA and DACA, which involve case-by-case discretion rather than a blanket rule, are generally exempt from the APA’s notice-and-comment requirement.
The administration has appealed the judge’s order to the Fifth Circuit Court of Appeals.
Meanwhile, in response to the injunction, which was issued on February 16, 2015, the Department of Homeland Security announced on February 17, 2015, that the expanded DACA program – which was slated to begin accepting applications on February 18 – was being postponed. The current DACA program, which has narrower eligibility criteria, remains in place. The DAPA program was slated to begin in May.
The injunction affects only the expanded DACA program and the DAPA program. Foreign nationals who qualify under current DACA eligibility criteria can continue to file initial applications and renewals. The administration’s business-based executive actions – including its longstanding plans to extend work authorization to certain spouses of H-1B workers (which was published in the Federal Register on February 25, 2015, and which goes into effect on May 26), and its announced intention to revise the way employment-based immigrant visas are made available – are not covered by the ruling.
Experts Say Executive Action Is Lawful
Prior to the President’s November 20, 2014, announcement of his executive actions on immigration, a group of 136 immigration law professors and scholars wrote a letter to the President, dated September 2, 2014, concluding that the administration “has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals residing in and contributing to the United States in meaningful ways,” and setting out in detail the legal foundations and history demonstrating how prosecutorial discretion fits into the U.S. immigration system.
After the November 20 announcement, the same group of experts sent an updated letter to the White House, dated November 25, 2015, expressing its “considered view that the expansion of the Deferred Action for Childhood Arrivals (DACA) and establishment of the Deferred Action for Parental Accountability (DAPA) programs are within the legal authority of the executive branch of the government of the United States.”
More recently, at a February 25, 2015, hearing of the House Judiciary Committee on the legality of the administration’s executive actions on immigration, one of the nation’s leading experts on immigration law testified that the actions are well within the President’s authority. Professor Stephen H. Legomsky, John S. Lehmann University Professor at Washington University School of Law (and the former chief counsel at U.S. Citizenship and Immigration Services), said, "Reasonable people of good faith can certainly differ over the precise priorities the President should adopt when enforcing the nation’s immigration laws with finite resources. Like the overwhelming majority of other immigration law professors and scholars, however, I believe that the legal authority for both the Prosecutorial Discretion Memo and the DACA/DAPA Memo is clear.”
On March 13, 2015, leading professors and scholars of immigration law issued another statement, calling the preliminary injunction in Texas v. United States “deeply flawed” and reiterating that “DAPA and the expansion of DACA are well within the legal authority of the federal executive.”
Injunction’s Impact on Pro Bono Efforts
Assuming the injunction is eventually lifted, the delay (whether it be several weeks or several months) still creates uncertainty among legal providers as well as among potentially eligible applicants. Many cities with large immigrant populations – including New York, Chicago and Los Angeles, to name just a few – have already invested significant amounts of time and money to design outreach clinics to reach eligible populations. Many private law firms had plans to get their attorneys involved with clinics created by cities, church groups or nonprofit organizations, or to set up clinics of their own, in time to help applicants for the expanded DACA program submit applications on or soon after the initial February 18 implementation date.
On the other hand, many outreach efforts are still going forward. On March 4, the New York Immigration Coalition went forward with a community meeting to provide an overview of the federal administrative relief programs, as well as the New York State DREAM Act. In Washington, D.C., attorneys from Fragomen, Fried Frank and other private law firms sent pro bono attorneys to volunteer with the Maryland Immigrants Rights Coalition at a DAPA/DACA workshop on Maryland’s Eastern Shore on March 15.
Even with the uncertainty created by the injunction, there is value in providing accurate information about the status of the programs, the impact of the injunction and the types of documentation that people can start to collect so that they are ready if and when the program goes forward.
The well-known shortage of free and low-cost immigration legal service providers in the United States has long been supplemented by private attorneys providing pro bono services. While pro bono attorneys most often take on asylum cases, private firms have stepped up in recent months by, for example, taking on cases involving unaccompanied immigrant children. Many firms have been poised to take on DAPA and DACA cases as well.
The preliminary injunction against DAPA and expanded DACA has put many pro bono attorneys’ plans on hold, and there is some risk that pro bono capacity may be strained by the time the programs go forward. However, most immigration advocates and experts assume that the injunction will be lifted and that the administration will ultimately prevail against this lawsuit. Many of the estimated four million people who may qualify for these programs will most certainly be in need of qualified pro bono counsel.
Published March 16, 2015.