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DAPA and The Court: You Can’t Get There From Here

By March 10, 2015No Comments
There is that old story of a person stopping in a small town to ask directions outside an old general store.  An old man on the porch of that store, when asked how to get to the destination, says “you can’t get there from here.”   It seems that the District Court in Texas is having the same problem understanding the DHS’s policy memos on DAPA and expanded DACA, as the old man on the porch had with understanding the road system.
Immigration law is complicated.  So complicated that at least one federal court judge has said: 

The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the Immigration and Nationality Act resembles ‘King Mino’s labyrinth in ancient Crete,’ and is ‘second only to the Internal Revenue Code in complexity.’” Chan v. Reno, 1997 U.S. Dist. Lexis 3016, *5 (S.D.N.Y. 1997). 

The District Court Judge in the DAPA case was never an immigration lawyer prior to becoming a federal court judge.  And, we cannot fault the court for not understanding the nuances and complexities of immigration law, regulation, and policy.  But, the issues before the court are not really about immigration law.  The main issues are about general issues of standing and statutory construction.  Yet, even in these two areas the District Court in Texas has found itself unable to get there from here, even though a District Court judge in Washington, D.C. clearly understood these issues, and found DAPA and expanded DAPA fully within the executive branch’s authority.

On March 9, 2015, the District Court in Texas issued a ruling refusing to rule on the government’s Emergency Motion to Stay the Court’s February order stopping implementation of DAPA, for the reason that the matters were too serious to rule quickly on the Motion. The Court also simultaneously asked for the government to explain the accusation from Texas that the USCIS has issued 100,000 three year (instead of two year) work permits to DACA recipients (individuals who are NOT covered by the District Court’s ruling in February). Anyone who practices immigration law knows that our DACA clients have been getting three year work permits when renewing their DACA since late November 2014, when the Obama administration announced this change in policy, and simultaneously announced the expansion of DACA and DAPA.  
Secretary Jeh Johnson was quite clear that the three year work permit expansion would begin on November 24, 2014:

Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work 3 authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years. 

The District Court wants the government to explain that they did, in fact, do exactly what they said they would do. This type of query is an example of the District Court not understanding the difference between DACA, which is NOT part of the litigation before him, and DAPA and expanded DACA which he has currently stayed. It also appears that the District Court is simply looking for reasons to delay an appeal in this matter, rather than dealing with the factually erroneous finding that Texas is harmed by DAPA and expanded DACA (but not apparently by DACA), and that the administration had to comply with the APA in issuing DAPA and expanded DACA (although the Supreme Court recently gave extraordinary policy making authority to the executive branch, exempting policy changes from the APA). 
Hopefully, the Obama Administration will realize that the District Court has no intention of lifting its stay, and will file an expedited appeal to the 5th Circuit Court of Appeals, where at least 12 states are set to argue that they are harmed by NOT have DAPA and expanded DACA in place.

Undocumented Parents of U.S. Citizens keep asking us, “when will DAPA start?”  The answer, unfortunately, is that we do not know when it will begin.  Certainly not in the original time frame envisioned by Secretary Johnson.  But, we remain convinced that the Court of Appeals, and even the Supreme Court will both find that there is no real standing in this case for states to object, and that even if there were standing, Secretary Johnson’s policy memos are will within the purview of the executive branch and that no compliance with the APA was necessary.   

Charles Kuck

Managing Partner