Mark A Ivener, A Law Corporation

Fifth Circuit Upholds Injunction Against Obama Administration’s DACA/DAPA Programs

On November 9, 2015, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld 2-1 a preliminary injunction against the Obama administration’s executive actions on Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). The court found, among other things, that the states have shown that the threatened injury if the injunction were denied outweighed any harm that would result if the injunction were granted. “The states have alleged a concrete threatened injury in the form of millions of dollars of losses,” the panel majority noted.

The majority also rejected the argument that congressional silence on immigration has conferred on the Department of Homeland Security (DHS) the power to act. The court found, among other things, that DAPA was “foreclosed by Congress’s careful plan,” and that immigration law “prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

Judge Carolyn King dissented, citing, among other things, a “litany of errors committed by the district court.” She noted, “There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.” Judge King concluded, “I have a firm and definite conviction that a mistake has been made.”

The Obama administration plans to appeal the ruling to the Supreme Court.

The decision, including Judge King’s dissent, is at

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.