By Attorneys Devin M. Connolly, Eric R. Welsh and Nancy E. Miller

The U.S. Department of Justice (DOJ) plans to file a motion for an emergency stay of the injunction ordered by a Texas federal judge against President Obama’s executive immigration order.  If the stay is granted, the Department of Homeland Security (DHS) will be able to receive applications for deferred action—and issue work permits—as originally planned, even while the courts consider the legality of the injunction. 

On Monday, February 16, 2014,Judge Andrew Hanen, a U.S. District Court judge in Texas, issued an injunction, prohibiting the immediate implementation of President Obama’s proposed immigration programs.  Initially, Department of Homeland Security Secretary Jeh Johson stated that while the Department did not agree with Judge Hanen’s decision, the Department would abide by the injunction.  Secretary Johnson indicated that the Department would freeze its plans to accept applications and issue work permits under the President’s programs.

Friday’s announcement by the White House demonstrates the President’s commitment to implementing the deferred action programs (“DACA” for childhood arrivals and “DAPA” for parents of citizens and permanent residents) as originally planned.  The emergency stay request, if approved, will reopen the doors for applications to be filed and work permits to be issued.  The DOJ will also pursue an appeal of the injunction.  Many legal experts believes that Judge Hanen’s injunction is unsupported by law and driven primarily by his personal bias and political motives, and that the injunction will not survive on appeal.

The White House stated that “the Supreme Court and Congress have made clear that the federal government can set priorities in enforcing ourimmigration laws – which is exactly what the President did when he announced commonsense policies to help fix our broken immigration system.”  The White House also stated that “the Department of Justice, legal scholars, immigration experts, and the District Court in Washington, D.C. have determined that the President’s actions are well within his legal authority,” and that these executive actions are “consistent with the way that previous presidents over the course of several decades have used their executive authority.”

Judge Hanen’s injunction has no effect on some deferred action programs.  The injunction only targets those initiatives outlined by President Obama in November 2014.  If an individual qualified for Deferred Action for Childhood Arrivals (DACA) in 2012 when it was first announced, that person remains eligible and may seek to renew deferred action and work authorization.

Many legal experts are confident that the federal government will prevail, and that President Obama’s programs will be fully implemented.  Immigration advocates are encouraging those eligible to continue preparing to apply for relief by consulting with experienced immigration attorneys, collecting necessary documents, and gathering information that will be needed.  If the stay of the injunction is granted, the Department of Homeland Security should be able to accept applications for expanded DACA immediately, and for DAPA by this May, as originally intended.

Among many corrections to current immigration processes, President Obama’s executive order expands the current DACA program (Deferred Action for Childhood Arrivals) and establishes DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents).  The President expanded DACA to include persons who were otherwise eligible for DACA when the program was initiated in 2012 except for having entered after June 15, 2007 (and before January 1, 2010), or, had turned 31 before DACA was announced.  DACA will also be issued for periods of three years instead of the current two-year period.

The President’s DAPA plan will provide three-year deferral of removal and three-year work authorization to parents of U.S. citizen or permanent resident sons or daughters (of any age) who have resided in the U.S. since at least January 1, 2010 , and who pass a criminal background check.  Recipients of DACA and DAPA may be able to apply for travel permits that would allow them to visit sick or dying relatives, study abroad, or conduct necessary business outside of the United States.
The White House, DOJ, and many experts in constitutional, administrative, and immigration law agree that President Obama has the authority to implement the programs set forth in his executive order.  There is vast consensus among legal experts that Judge Hanen’s injunction is unlawful and will not stand, and there is good cause for optimism about the emergency stay of the injunction that the DOJ plans to file on Monday, February 23.Any person who may be eligible for DACA or DAPA, or any other relief proposed in the recent executive order, should meet with an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law to discuss their case.

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