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Will DAPA Be Enforced?

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On February 16, 2015, Texas and twenty-six other states filed a case against the expansion of Deferred Action for Childhood Arrivals (“DACA”) and the implementation of Deferred Action for Parents of Citizens and Lawful Permanent Residents (“DAPA”).  DACA  was originally created in 2012 and allowed immigration officials on a case-by-case basis to refrain from removing aliens who: (1) were younger than 16 years-old at the time of their arrival in the USA; (2) were present in the USA  on the date the memorandum was issued and continuously for five years preceding that date; (3) meet specific educational or military criteria; (4) had not been convicted of any crimes; and (5) were under 31 at the time.
The memorandum issued on November 20, 2014 called the Deferred Action Guidance (“the Guidance”), at issue in this case, expanded those eligible for DACA by increasing the upper age limit and changing the date by which individuals had to be present in the USA from June 15, 2007 to January 1, 2010.  The Guidance also announced the DAPA program under which DHS would consider deferred action for alien parents of US Citizens or lawful permanent residents if they: (1) as of November 20, 2014, have a child who  is a US citizen or lawful permanent resident; (2) have continuously resided in the US since January 1, 2010; (3) have been physically present in the US since November 20, 2014; (4) have no lawful immigrant status on November 20, 2014; (5) do not fall within the enforcement priorities; and (6) present no other factors that would make deferred action inappropriate.

 

The lawsuit, requested an injunction to prevent DHS from implementing the new DACA and DAPA regulations.  District Court Judge Andrew Hanen issued this injunction on February 17, 2015 one day before DACA and three months before DAPA registrations were set to open.  The injunction is currently being appealed to the 5th Circuit Court of Appeals.  The US Department of Justice, on behalf of the United States of America, filed a motion for an expedited appeal of the injunction and a motion to stay the injunction pending appeal on February 23, 2015.

 

On March 30, 2015, the government filed a brief opposing the injunction and requesting its rescission.   The brief made four major arguments: (1) that the plaintiffs lacked standing to challenge the 2014 Deferred Action Guidance; (2) that the plaintiff’s claim that the Guidance required notice and comment rule making is unlikely to prevail; (3) that the balance of harms and the public interest weigh strongly against the preliminary injunction; and (4) that the injunction is overbroad.

 

The Plaintiffs Lack Standing

The government contends that Texas, and the other plaintiff states, lacked standing to contest the Guidance because of their status as third parties.  Third parties lack standing to contest Executive enforcement decisions directed at others. The plaintiffs argued Article III standing under the Constitution which requires demonstration that an injury is (1) concrete, particularized, and actual or imminent; (2) fairly traceable to the challenged action; and (3) redressable.  When the claim is based on a future injury, as it is here, the standard is even higher and the possibility of injury must be “certainly impending.”

 

No qualifying injury to the plaintiffs was shown. Texas argued that it would be injured by the cost of providing driver’s licenses to aliens who receive DACA or DAPA because Texas subsidizes its driver’s license fees. This does not constitute standing because Texas controls how it charges people who qualify for driver’s licenses, alien or citizen alike, and because the Guidance does not require Texas to provide a driver’s license. Texas already provides driver’s licenses to aliens with deferred action and is merely arguing that this number will increase.

 

The court introduced the concept of “abdication standing” to circumvent the lack of standing. This theory argues that DHS has abdicated its enforcement mandate by introducing the Guidance and thus Texas has standing to sue on this ground. “Abdication standing” would theoretically apply in any situation where the state or its citizens’ interests are harmed “based on the federal government’s ‘refusal to act in a realm where other governmental entities are barred from interfering.'”  This theory fails because it has no legal weight and is factually inaccurate. Legally, states cannot create a cause of action in any situation where they disagree with federal enforcement priorities by claiming the abdication of duties. This claim is particularly dangerous in the immigration context which specifically bars state action. Factually, DHS removed a record number of aliens from 2009 to 2010 at 2.4 million. Far from abdicating its authority, DHS is trying to better allocate limited resources to deport the largest number of deserving aliens.

 

Notice and Comment Rule Making Is Not Required In This Situation

The government also believes that the court erred when holding that the Guidance needed to go through the notice and comment rule making process under the Administrative Procedure Act (“APA”).  The plaintiffs are barred from proceeding under the APA because the Immigration and Nationality Act (“INA”) is specifically exempt from judicial review.  Additionally, even if the plaintiffs could proceed under the APA the Guidance would be exempt because it is a general statement of policy, defined as “advis[ing] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”  The Guidance is a general statement of policy because it does not have the force and effect of law and does not deprive the officers of exercising their own discretion.

 

The Possible Harm Does Not Outweigh the Public Benefit

The possible harms that Texas faces, in the form of driver’s license fees, do not balance the real harms faced by the government, the people who would benefit from DACA or DAPA, the state and local law enforcement agencies whose interests are furthered by increased cooperation with aliens, and the financial interests of states who do not oppose the Guidance from increased employment and tax revenues. Additionally, the benefits conferred on Texas through these same avenues vastly outweigh the alleged harm caused by the driver’s license fees. Of the 26 plaintiffs in the case, Texas is the only one to attempt to provide evidence of the harm it would suffer.

 

The Injunction  Is Over Broad

Even if the plaintiffs could prove that their request for an injunction was justified, the injunction is overly broad and should only be in effect in Texas. Assuming that Texas provided sufficient evidence of harm to prove it has standing in this case, there is no sufficient reason to uphold an injunction in any state other than Texas. Although 26 States joined Texas in this case, Texas is the only one to provide evidence of a harm suffered and thus the others still lack standing to sue.  Despite their non-participation 24 other states, the District of Columbia, and US protectorates are prevented from implementing DACA and DAPA by this injunction. Fifteen states and the District of Columbia filed amicus curiae brief in support of the government’s position stating why they want the injunction lifted and detailing the benefits they would receive from implementation of the Guidance.  These states are being harmed by an injunction that was issued on shaking legal ground and that is being applied in an overly broad manner converse to the principles of injunctions.

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