Fifth Circuit Denies Administration's Request To Stay Injunction Against Deferred Action

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By Laura D. Francis

May 26 — A preliminary injunction barring implementation of two new deferred action programs affecting some 5 million undocumented immigrants will remain in place while litigation against them continues, with the U.S. Court of Appeals for the Fifth Circuit refusing the Obama administration's request for a stay May 26.

Relying largely on the same arguments used to support the preliminary injunction issued by the U.S. District Court for the Southern District of Texas in February, the appeals court in a 2-1 decision held that the federal government failed to meet its burden of showing that it is likely to succeed on the merits.

The 26 states pursuing the lawsuit have standing, and the administration hasn't shown that there is a bar to judicial review of the programs, the court held in a decision authored by Judge Jerry E. Smith and joined by Judge Jennifer Walker Elrod.

Judge Stephen A. Higginson dissented, arguing primarily that the matter is nonjusticiable because the deferred action for parents of Americans and lawful permanent residents (DAPA) program and expanded deferred action for childhood arrivals (DACA) program are exercises of discretion. He also asserted that the programs don't warrant notice-and-comment rulemaking under the Administrative Procedure Act.

Positive, Negative Reactions

“Today’s decision from the federal appeals court is another victory for the Constitution and the American people,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a May 26 statement on the decision. President Barack Obama’s “executive overreach on immigration poses a clear and present danger to our Constitution and I am pleased that the President’s actions continue to be halted so that the states’ lawsuit can continue to move forward.”

“By acting unilaterally to rewrite our nation’s immigration laws, President Obama has disregarded the will of the American people and violated the Constitution,” Goodlatte continued. “Such lawlessness must be stopped so that we preserve the separation of powers in the Constitution and protect individual liberty.”

But Melissa Crow, legal director of the American Immigration Council, said the organization is “disappointed.” The AIC, which advocates on behalf of immigrants, believes the Fifth Circuit majority decision is “fundamentally flawed,” Crow said during a telephonic press conference.

Speaking during the same conference, National Immigration Law Center Executive Director Marielena Hincapie said “we're on the right side of history” and her organization plans to continue to press the administration to implement other elements of the November executive action that aren't affected by the injunction. In particular, she said President Obama should use the Department of Homeland Security's new immigration enforcement priorities to ensure that anyone who would have been eligible for DAPA and expanded DACA isn't deported while the lawsuit is ongoing.

Hincapie also urged the administration to seek review of the Fifth Circuit's decision before the U.S. Supreme Court.

Service Employees International Union Associate General Counsel Debbie Smith added that the SEIU is continuing to help immigrants prepare for the programs as if they are going forward because of the length of time it can take to gather the paperwork necessary for an application. “We continue to urge people to prepare because we do feel that ultimately this will go forward,” she said.

The Fifth Circuit majority said the financial benefits of DAPA and DACA are “wholly separate” from driver's license costs, and thus can't offset them sufficiently to defeat the states' standing to sue.

Injunction Remains for Now

The Fifth Circuit's decision means an injunction issued by Judge Andrew S. Hanen in February—on the eve of the implementation of the expanded DACA program—barring the new deferred action programs remains in place for the time being. Several immigration advocacy organizations held events May 19 to commemorate the day DAPA would have been implemented but for the injunction.

Both programs are part of a wide-ranging executive action on immigration announced by the president in November 2014.

The administration's appeal of the preliminary injunction—which is separate from its request to stay the injunction—remains pending, and oral argument before the Fifth Circuit is tentatively scheduled for July 6.

In its May 26 decision, the Fifth Circuit majority, like Hanen, relied on the cost to Texas as proof of injury necessary to establish standing. Although the administration had argued that those costs would be offset by the financial benefits of DACA and DAPA, those benefits are “wholly separate” from the cost of issuing driver's licenses and too removed to be considered, the court said.

Furthermore, that injury is traceable to the deferred action programs, and Texas's forced choice between issuing the licenses to DAPA and DACA beneficiaries and changing its driver's license fee structure is itself a substantial injury, the court said. The appeals court added that the states “easily” met the requirement that the injury be redressable by a favorable court ruling barring the programs.

The administration also didn't make a strong showing that the states aren't within the zone of interests protected by the Immigration and Nationality Act, the majority said. States may deny benefits to undocumented immigrants, and the states here are only attempting to be “heard in the formulation of immigration policy before it imposes substantial costs on them,” the court said.

Judicial Review Available

The majority also held that the administration didn't show that the case is nonjusticiable. The INA doesn't explicitly preclude judicial review in this instance, and the federal government's broad authority over immigration enforcement doesn't implicitly bar review, it said.

The majority recognized that the administration has broad enforcement discretion, and said some features of DAPA “are similar to prosecutorial discretion.” But DAPA is “more than nonenforcement: It is the affirmative act of conferring ‘lawful presence' on a class of unlawfully present aliens,” the majority said. “Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”

Finally, the majority held that the memorandum establishing DAPA and expanded DACA is a rule that requires notice-and-comment rulemaking. Although the administration characterizes the memorandum as a statement of policy, there was conflicting evidence at the district court level as to the extent of discretion allowed under the original DACA program, used as a prototype for the new programs.

Therefore, the majority said, the administration hasn't made a strong showing that it was clearly erroneous to rule that DAPA isn't sufficiently discretionary that the APA need not be followed.

The majority also found that the administration wouldn't be irreparably harmed absent the stay, but lifting the injunction would substantially injure the states. And at most the public interest favors maintaining the status quo, it said.

The court also refused the administration's request to narrow the injunction so as to apply only to the plaintiff states.

Dissent: Lower Court Mischaracterized Programs

In dissent, Higginson argued that the case is nonjusticiable. He said the “essential point of disagreement” he has with Hanen's decision is Hanen's characterization of DACA and DAPA as thwarting congressional intent to removal all undocumented immigrants.

“Congress could, but has not, removed discretion from DHS as to which undocumented immigrants to apprehend and remove first,” Higginson wrote.

He added that it is “undisputed” that the Obama administration is deporting immigrants at a faster rate than any prior administration, and it should be prioritizing those removals to deport “violent and dangerous immigrants” ahead of the parents of U.S. citizen children.

Higginson also took issue with Hanen suggesting that DACA and DAPA confer benefits on undocumented immigrants, asserting that the programs only confer lawful presence, not lawful status. Presence is the exercise of discretion, whereas status is a right protected by law, he said.

But Higginson also argued that the memorandum isn't the type that requires notice-and-comment rulemaking, but instead is an internal policy statement. He took issue with Hanen's reliance on the president's press statements to characterize the memorandum, stating that presidents “often describe law enthusiastically yet defend the same law narrowly.”

Furthermore, an intent to bind—rather than an exercise of discretion—cannot be inferred from the original DACA program's approval rate, Higginson said. For one thing, the criteria for that program differ from those in DAPA and the expanded DACA program, he said.

But what is “especially significant” is that the DACA approval rate “fails to take into account the crucial voluntary aspect of this memorandum, that applicants will not apply if they are ineligible—essential self-reporting for removal—or, if eligible, when they have any other flaw they do not want revealed,” Higginson wrote.

Benjamin Mizer of the Justice Department argued for the administration. Texas Solicitor General Scott Keller argued for the states.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at