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Judge Andrew Hanen

First thing to know about the decision of the Texas judge who decided that DAPA and expanded DACA were illegal- DON’T PANIC!  Keep collecting documents.  This is a bump in the road, but is by no means final.

What happened yesterday?

A Texas judge granted a preliminary injunction to 26 states who sued the Obama administration over the executive action program.  This has the effect of temporarily suspending the government’s implementation of DAPA and expanded DACA.  Expanded DACA was supposed to take effect on February 18, 2015.  Unless the injunction is lifted, DHS will be unable to accept applications on that date.

What was this lawsuit about?

Texas and 25 states sued the administration over the executive action program announced by the President on November 20, 2014.  The states argued that DAPA and expanded DACA would place new burdens on them, such as issuing driver’s licenses and that the executive action was not legal under the Immigration & Nationality Act and the constitution.

Why did a judge in Brownsville, Texas get this case?

As the plaintiff, Texas is allowed to choose the venue for the lawsuit.  Texas chose Brownsville in the hope of drawing Judge Andrew Hanen, possibly the friendliest jurist in the country for their claims. Judge Hanen previously had stated in dicta that the government was engaged in human smuggling because of the failure he perceived of the government to “secure the border.”

Ok, what is dicta?

Ditka, not dicta.

Dicta is not the former Chicago Bears coach.  Dicta is language in a court opinion that is not necessary to resolve the case.  As such, dicta is not considered to have any legal effect in the case or in future cases.

What is a preliminary injunction?

A preliminary injunction is a way that a court preserves the status quo while it considers the legal challenge raised.  In this case, the states challenged the implementation of executive action.  The court stated that, in order to have a complete disposition of their claims, it was necessary to halt the implementation of the program.  The court found that the plaintiff states had established that they were likely to succeed in their lawsuit (he’s deciding it, after all!), and that they would be irreparably harmed if the executive action went forward.  It is not a final resolution of the case, but an order placing everything on hold while the case goes forward.

Does this apply to my DACA extension?

No.  This decision does not address the legality of 2012 DACA or extensions of DACA.  It only relates to DAPA and expanded DACA introduced in November 2014.

So now what?

The U.S. government will appeal the decision on the injunction to the U.S. Court of Appeals for the Fifth Circuit. The 5th Circuit will have to decide whether to let the injunction stay in place or whether to lift the injunction while the lawsuit continues before Judge Hanen.

So what happens if the injunction is lifted?

The DAPA and expanded DACA programs will go forward as planned.  Texas may seek an emergency ruling from the Supreme Court to stop the programs for being implemented.

So what happens if the injunction is not lifted?

If the injunction is not lifted, the government can appeal to the Supreme Court to get it lifted. If neither the 5th Circuit nor the Supreme Court lift the injunction, it will stay in place as long as the litigation goes on, which could be several months or even years,

What will the 5th circuit do?

Many experts believe that there are numerous legal flaws with Judge Hanen’s ruling.  Most observers believe that the 5th Circuit will lift the injunction.

When might the 5th Circuit rule?

Be assured that, despite the fact that Washington is officially closed today due to snow, government lawyers will appeal the ruling to the 5th Circuit and ask for an expedited decision.  We hope for a decision that could allow expanded DACA to go ahead this week.

What should I do?

Continue to collect documents to apply for DACA or DAPA and be ready once the injunction is lifted!  But for today, go and play in the snow.

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