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5th Cir. Did Not Prohibit Deferring Deportation For DAPA's. By Roger Algase

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In my comments posted earlier on May 27 about the 5th Circuit Court of Appeals decision upholding a Federal District Judge's preliminary injunction against implementing President Obama's DAPA and expanded DACA programs, I stated that the issue involved was whether millions of immigrants eligible for these programs would be deported.

However, while there can be little doubt that many of the politicians in the states supporting the lawsuit against these programs would like to see every last one of the estimated four million mainly Hispanic immigrants involved deported, the Federal District Court injunction does not go that far.

It is true that the likely effect of the District Court's injunction, and the Appeals Court's decision upholding it, will be to place the four million people who would have been protected by DAPA/Expanded DACA at risk of deportation. But this is not because of the language of the injunction itself. Instead, it is due to the way the Obama administration is reacting to the injunction.

There has been, to say the least, considerable misunderstanding in the media and among the public about what the injunction says. For example, Huffington Post, in its May 27 article Obama Administration Will Not Seek Supreme Court Stay On Immigration Block, writes:

"U.S. District Court Judge Andrew Hanen issued a preliminary injunction on Feb. 16 that halted Obama's executive action, which could spare from deportation as many as 5 million people who are in the U.S. illegally." (Bold added.)

The obvious implication is that the injunction prevents the administration from choosing not to deport the people involved. But both the District Court and Circuit Court decisions make clear that that the injunction blocking Obama's November immigration executive action does not affect the government's power to use prosecutorial discretion in order to avoid deporting immigrants whom it considers to be low-priority.

To the contrary, the injunction distinguishes between the government's authority not to enforce the deportation laws in specific cases for whatever reasons, and its intention to grant quasi-legal status, which it calls "lawful presence" and affirmative benefits, such as work authorization, to the people who would be spared from deportation.

Under the terms of the injunction, only the latter is prohibited, but not the former. The March 26 5th Circuit Court's decision states (at pages 23-24):

"The [DHS] Secretary does, nevertheless, have broad enforcement discretion and maintains that deferred action under DAPA - a grant of 'lawful presence' and subsequent eligibility for otherwise unavailable benefits - is a presumptively unreviewable exercise of that discretion. 'The general exception to reviewability provided by Section 701(a)(2) for action committed to agency discretion remains a narrow one, but within that exception are agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.' [Footnote reference omitted.] When, however, an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded it statutory powers." [Citation omitted - original italics]

The Court continues:

"Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary's decision - at least temporarily - not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA's version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring 'lawful presence' on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would otherwise not be available." [Italics and emphasis added, footnote citations omitted].

Later on in the decision, the Court states (at page 40):

"The government urges that DHS will not be able to determine quickly whether the illegal aliens it encounters are enforcement priorities, but even under the injunction, DHS can choose whom to remove first; the only thing it cannot do is grant class-wide lawful presence and eligibility for accompanying benefits as incentives for low-priority aliens to self-identify in advance." [Italics and emphasis added].

One can question whether the Court's distinction between "nonenforcement" i.e., deciding not to deport someone, and "acting to enforce" by granting affirmative benefits to that same person makes any sense. Enforcement of any law involves making decisions about how to apply that law and whom to apply and not to apply it to.

When a criminal prosecutor decides not to prosecute someone, either through lack of evidence or because the public interest would not be served for some other reason, no one would call that "nonenforcement" of the law. Rather, that would be a decision about how to enforce the law. Is not deciding whom it is in the public interest to deport or not to deport under the law also part of enforcement?

And is not a decision by DHS to allow individuals, or a class of people, who are here illegally to stay in the US indefinitely or for a certain period of time, without being locked up or deported, also an affirmative benefit, in and of itself? Is this not the case even without work authorization, a social security number, access to a driver's license, etc.?

Even assuming, however, that the Court's distinction may be somewhat strained, and, very possibly, influenced by right wing political rhetoric to the effect that President Obama (who has one of the highest deportation rates of any president in US history) is "not enforcing" the immigration laws, the distinction is clearly there for the purposes of interpreting the scope of the Court's injunction against implementation of DAPA and expanded DACA.

The injunction does not limit DHS's power to defer deportation or otherwise choose not to deport a given individual or class of people. However, despite the limits of the injunction, people who would be eligible for DAPA or Expanded DACA are still being deported, according to media reports. This is not because of anything in the decisions of either the District or Circuit Courts in the above case, Texas v. U.S.

It is because of the Obama administration, which is ultimately responsible for DHS.

I would like to thank my colleague Nolan Rappaport for his helpful suggestions relating to the above distinction in the Court's injunction. This does not imply that he either agrees or disagrees with my comments.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping skilled and professional immigrants obtain work visas and green cards for more than 30 years.

His practice is concentrated in H-1B specialty worker, O-1 extraordinary ability, L-1 intracompany transfer and J-1 trainee visas, and green cards through Labor Certification and opposite sex or same sex marriage.

Roger's email address is

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Updated 05-28-2015 at 11:19 AM by ImmigrationLawBlogs

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