On November 9, 2015, the United States Court of Appeals for the Fifth Circuit issued their 124 page decision upholding a nation-wide injunction of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Based on the 5th Circuit decision, the 2012 DACA program remains intact, however the 2014 expansions are enjoined. The 5th Circuit head oral arguments over six months ago, and the delay in issuing their decision likely forecloses the possibility of a formal appeal being heard by the U.S. Supreme Court before the 2016 presidential elections. However, as the Obama administration filed an appeal today (November 20th), the Supreme could hear the case this term, hold it for next term, or decline to hear the case altogether.

The 5th Circuit’s decision enjoins the DAPA program as a whole and in addition enjoins three main expansions to the DACA program.

The three proposed DACA expansions were:

1. The age restriction excluding those who were older than 31 on the date of the DACA announcement (will no longer apply)

2. The expansion of work authorization from two to three year increments (will remain at 2 years)

3. The eligibility cut-off date by which a DACA application must have been in the US to be adjusted from June 15, 2007 to January 1, 2010 (cut-off date will remain at June 15, 2007).

History of DACA/DAPA

In June 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals program (“DACA”) which made approximately 1.2 million individuals eligible for prosecutorial discretion in the stay of their removal, and in addition provided a path for work authorization to be granted in two year increments. Approximately 636,000 DACA applications were approved by the close of 2014.

In November 2014, DHS expanded the DACA program. The DAPA program would permit individuals who have a son or daughter who is a U.S. citizen or lawful permanent resident to remain in and be deemed lawfully present in the United States, as long as 5 additional criteria were met. Approximately 4.3 million of the 11.3 million undocumented persons in the United States would be eligible for lawful presence under the DAPA program.

Federal and State Benefits: The Issue as Texas Sees It

Persons granted lawful presence pursuant to DAPA are no longer barred from receiving social security retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program. Undocumented individuals must still satisfy independent qualifying criteria before receiving those benefits, but the DAPA grant removes the categorical bar from eligibility.

Through the grant of lawful presence, DAPA recipients would also be eligible to obtain a Social Security number, accrue quarters of covered employment, correct wage records, and would be eligible for earned income tax credits.

At the state level, a State may refuse to grant public benefits to individuals not lawfully present in the United States. For example, Texas will not issue a driver’s license to unlawfully present persons. The state argued, successfully, that the documentation provided by DAPA would allow otherwise ineligible “aliens” to become eligible for state-provided driver’s licenses. In addition, Texas argued that DAPA recipients would also become eligible for unemployment insurance.

Specifically, if DAPA goes into effect, Texas argued undocumented immigrants would become eligible for a host of state issued benefits for which they are not now eligible. On driver’s licenses alone, Texas would lose a minimum of $130.89 on each license issued to a DAPA recipient. Thus the state would lose several millions of dollars because of DAPA. This basic “harm” is what enabled Texas, and the 25 other states, to bring suit.

The Lone Star State Takes a Stand: 26 States Sue

In February 2015, 26 states sued in the U.S. District Court for the Southern District of Texas to prevent the DAPA program’s enactment on three grounds. First, they argued that DHS violated the procedural requirements of the Administrative Procedures Act (“APA”) because as a substantive rule, the DAPA program should have been held out for substantive notice and rulemaking procedures. Second, the states less credibly claimed that DHS does not possess the authority to implement the program even if the proper notice and comment procedures were followed, and finally the sates argued that the DAPA program abridged the President’s duty to “take Care that the Laws be faithfully executed” under article II, section 3 of the U.S. Constitution.

The district court held that Texas has standing to bring the claim based on a new theory of standing called “abdication standing.” Under this theory, Texas has standing because the United States has exclusive authority over immigration but has refused to act in that area. In 2012, the Supreme Court held in Arizona v. United States, that the federal government has exclusive control over the regulation of illegal immigration. Building on that decision, the plaintiffs here now argue that through DAPA the federal government has abdicated that authority to enforce immigration laws with respect to certain individuals. In the face of the federal government’s abdication, States have no other recourse than the judicial system, giving them standing to bring the claim.

The U.S. District Court for the Southern District of Texas granted the preliminary injunction, stating that Texas as the lead plaintiff had shown a substantial likelihood of success on its claim that DHS must submit the program to notice and comment. The Court declined to reach the merits on the plaintiff’s substantive APA claim or their constitutional claim under the Take Care clause.

The United States appealed the District Court’s decision, arguing that the states did not have standing, or in the alternative that DAPA is exempt from the notice and comment procedures under the APA.

Don’t Mess With Texas: 5th Circuit Upholds Standing, Rules on Substance

The 5th Circuit held that the Texas and its 25 state companions did in fact have standing and upheld the District’s Court ruling that the states established a substantial likelihood of success on the merits of their procedural claim.

The 5th Circuit then turned to the chances of success on the states’ substantive APA claim, which the District Court had declined to address. The 5th Circuit upheld the injunction on the basis that the States were able to show substantial likelihood of success on their substantive APA claim. The Court held that even applying the highly deferential standard set forth in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), DAPA is not a reasonable construction of the INA because it is manifestly contrary to the INA statutory scheme. (decision at 55, FN 160).

The INA sets forth specific and detailed legal designations allowing for defined classes of aliens to be lawfully present in the United States. The INA also contains a detailed statutory scheme for illegal aliens to derive lawful status in the United States, including departing the U.S. and waiting 10 years to obtain a family-based preference visa. DAPA runs afoul of the INA by providing a host of benefits not included within the statutory scheme laid out by Congressional action. The Court found it significant that the INA does not contain a family-sponsorship process for parents of an LPR child, however DAPA allows a parent to derive lawful presence their child’s LPR status.

Onto the Supreme Court?

The 5th Circuit held that the INA is unambiguously specific and intricate in its creation of lawful presence and work authorization provisions. This finding defies logic and ignores the sheer complexity and disjointedness of the INA, a statue that has been subject to review, revision, and a multitude of changes since its first enactment. Although the 5th Circuit would have us compare the INA to the intricate ceiling of the Vatican, anyone who has ever come into contact with the U.S. immigration system would know it is more aligned with a high quality Jackson Pollock. Had Congress truly created an unambiguously specific and intricate immigration system, DACA and DAPA would not be necessary and 11.3 million people would not live in the shadows of the New Colossus.

Solicitor General Donald Verrilli said in the filing that the Supreme Court should hear the case because the appeals court,

“upheld an unprecedented nationwide injunction against implementing a federal immigration enforcement policy of great national importance” that would “allow states to frustrate the federal government’s enforcement of the nation’s immigration laws.”

If the Supreme Court does not rule this term it will be left for the winner of the 2016 election to sort out.