AILA Doc. No. 14122946 | Dated June 29, 2017
Texas and nine other states sent a letter to Attorney General Jeff Sessions requesting that the DACA program be "phased out" and that DHS rescind the June 15, 2012, DACA memo and not renew or issue any new DACA or expanded DACA permits. The letter states, "If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or Expanded DACA permits in the future, then the plaintiffs that successfully challenged DAPA and Expanded DACA will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas. Otherwise, the complaint in that case will be amended to challenge both the DACA program and the remaining Expanded DACA permits." (AILA Doc. No. 17070536)
DHS issued a press release stating that the November 20, 2014, memorandum that created DAPA and provided expanded work authorization has been rescinded because “there is no credible path forward to litigate the currently enjoined policy.” The press release states that the June 15, 2012, memorandum that created the DACA program will remain in effect. DHS also issued FAQs on the rescission of the November 20, 2014, memorandum.
The court withdrew the sanctions portion of the order it issued on May 19, 2016, though the court did not withdraw the opinion it issued on that date. Judge Hanen wrote in the memorandum opinion and order, "This Court finds upon [DOJ's] newly filed evidence, that the statements in question, though repeated on multiple occasions, were not the product of a bad faith intent to deceive the Court or that they were made with malice." He also wrote that there was "no current need for the Defendants to file with the Court the personnel identifiers of those individuals covered by the misrepresentations."
The parties filed a joint motion with the U.S. District Court for the Southern District of Texas to stay proceedings on the merits of the plaintiffs' claims, including the obligation to propose a schedule for resolution of the case, until February 20, 2017. The motion states, "Given the change in administration ... a brief stay of any further litigation in this court before beginning any further proceedings would serve judicial efficiency and economy so that the parties have a better understanding of how they might choose to move forward" (Texas v. United States, 11/18/16)
The U.S. Supreme Court denied without comment the Obama administration’s request to rehear United States v. Texas with nine justices.
A DACA recipient in New York filed a complaint in the U.S. District Court for the Eastern District of New York challenging DHS’s revocation of his employment authorization and seeking to exempt New York residents from Texas Judge Andrew Hanen’s injunction against President Obama’s executive actions on immigration, arguing that the injunction is “unlawfully broad.” (Batalla Vidal v. Baran, et al., 8/25/16)
Judge Andrew Hanen issued an order moving the date of the scheduled status conference from August 22, 2016, to August 31, 2016, at 1:30 pm.
The DOJ filed a petition for rehearing with the U.S. Supreme Court, arguing that "the Court should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide in-junction of such significance."
AILA provided Frequently Asked Questions (FAQs) on the U.S. Supreme Court's ruling in United States v Texas, including an explanation of the Court's ruling, the impact the ruling will have on millions of immigrant families waiting to apply for DAPA and DACA+, and predictions of what will happen next in the legal case.
An equally divided U.S. Supreme Court affirmed the Fifth Circuit's decision, effectively upholding the lower court's injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). (United States v. Texas, 6/23/16)
Watch President Obama deliver a statement on the Supreme Court's ruling.
For more information, read the American Immigration Council's Defending DAPA and Expanded DACA Before the Supreme Court.
Judge Andrew Hanen issued an order for the parties to appear for a status conference before the court on August 22, 2016, at 11:00 am. The order stays the court's order of May 19, 2016, pending the outcome of that hearing, as well as stays all proceedings on the merits per the outcome of that hearing. The order states that the defendants have until July 31, 2016, to "file any submission they wish as to an appropriate sanction" for what the court found to be misrepresentations, and/or any evidence they may have concerning the misrepresentations discussed in that order.
The DOJ asked the Fifth Circuit to vacate Judge Hanen's May 19, 2016, order of sanctions, and to stay the order pending mandamus, arguing that the judge's penalties are "as extraordinary as they are wrong."
The government filed a motion to stay pending further review of U.S. District Judge Andrew Hanen’s May 19, 2016, memorandum opinion and order that DOJ attorneys attend a legal ethics course annually. The government contends that “The sanctions ordered by the court far exceed the bounds of appropriate remedies for what this court concluded were intentional misrepresentations.” The motion also states that the sanctions exceed the scope of the court’s authority and unjustifiably impose irreparable injury on the DOJ, DHS, and thousands of innocent third parties.
U.S. District Judge Andrew Hanen ordered DOJ attorneys to attend a legal ethics course annually, stating that “this Court and opposing counsel were misled both in writing and in open court on multiple occasions as to when the Defendants would begin to implement the Secretary’s 2014 DHS Directive establishing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and amending the DACA program.” The judge also ordered the government to file a list of each immigrant who received three-year EADs in each of the 26 plaintiff states in Texas v. United States.
April 18, 2016
This morning, the U.S. Supreme Court heard oral arguments in United States v. Texas.
April 12, 2016
The American Immigration Council provides a guide with brief answers to common questions about United States v. Texas, including what is at stake in the case, how the litigation began, what the contested issues are, and the impact the case may have on the United States. For information on the oral arguments to be held by the Supreme Court on Monday, April 18, 2016, see AILA’s resource page.
March 28, 2016
Texas and the other 25 state respondents filed a 77-page brief arguing that the states have standing, that DAPA is reviewable under the Administrative Procedure Act (APA), that DAPA violates the APA, and that DAPA violates the executive's duty to take care that the laws be faithfully executed.
March 17, 2016
On March 17, 2016, H. Res. 639 passed largely along party lines, by a vote of 234 to 186. Notably, Republican members Mario Diaz-Balart (R-FL), Carlos Curbelos (R-FL), Richard Hanna (R-NY), Ileana Ros Lehtinen (R-FL), and Robert Dold (R-IL) crossed party lines and voted against the resolution.
March 16, 2016
The Congressional Research Service released a Legal Sidebar titled, "The House May Vote to File an Amicus Brief: Is this Unprecedented?", which discusses H. Res. 639 that would authorize the Speaker of the House to appear as amicus curiae on behalf of the House and file a brief in United States v. Texas, supporting the position that the federal government acted in a manner inconsistent with federal law.
March 8, 2016
AILA joined the American Immigration Council and 324 other immigration, civil rights, and community groups in filing an amicus brief in urging the U.S. Supreme Court to lift the injunction blocking the implementation of DAPA and expanded DACA, President Obama's executive actions on immigration (AILA Doc. No. 16030870). In a press release, AILA President Victor Nieblas Pradis stated, "The case boils down to one thing: whether the valid exercise of federal constitutional power over immigration can be blocked by a single state" (AILA Doc. No. 16030871). Oral arguments in the case are scheduled for April 18, 2016, and a decision is expected in late June.
Two hundred and twenty-five House and Senate Democrats filed an amicus brief urging the U.S. Supreme Court to reverse the Fifth Circuit's judgment and vacate the injunction blocking the implementation of President Obama's executive actions on immigration. Amici argue that the DAPA guidance is a permissible exercise of congressionally granted discretion, and that it presents no issue under the Take Care Clause of the Constitution.
To find other amicus briefs, check out the American Bar Association webpage on United States v. Texas.
March 1, 2016
The government filed a brief with the U.S. Supreme Court arguing that this case is not justiciable, and that Secretary Jeh Johnson's November 20, 2014, guidance on exercising prosecutorial discretion and deferred action is a lawful exercise of the secretary's broad statutory authority to administer and enforce the INA. The government further argues that the guidance is exempt from notice-and-comment rulemaking requirements, and that the Take Care Clause of the Constitution provides no basis for relief.
February 26, 2016 p>
The American Immigration Council is looking for businesses who would be interested in signing an amicus brief in support of expanded DACA and DAPA. If you have an interested business client, please contact the Council by March 3, 2016, for more information. p>
February 18, 2016 p>
In this AILA Quicktake, American Immigration Council's Director of Policy Beth Werlin discusses how U.S. Supreme Court Justice Antonin Scalia's death might impact the upcoming case on Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) (AILA Doc No. 16021805). p>
January 19, 2016 p>
The U.S. Supreme Court granted the Obama administration's petition for a writ of certiorari. In addition to the questions presented by the petition, the Court directed the parties to brief and argue the following question: "Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3." AILA President Victor Nieblas welcomes the Supreme Court's decision to take up Texas vs. United States, noting that the final ruling "will go far beyond immigration. No single state should be empowered to thwart the federal government's nationwide policy decisions" (AILA Doc No. 16011900). In this AILA Quicktake, the American Immigration Council's Legal Director Melissa Crow discusses the Supreme Court's announcement to hear the case on President Obama's executive actions on expanded DACA and DAPA and looks to what to expect next (AILA Doc. No. 16012102). p>
December 1, 2015 p>
The Washington Post reports that the U.S. Supreme Court rejected a request from Texas and other states for a 30-day extension to file legal briefs in support of the lawsuit to block the executive actions on immigration. Instead, the Court accepted DOJ's request for a shortened eight-day extension-until December 29, 2015. p>
November 30, 2015 p>
AILA joined the American Immigration Council and 222 other immigration, civil rights, labor, and social service groups in an amicus brief, urging the U.S. Supreme Court to review the Texas v. United States case that has blocked some of President Obama's executive actions on immigration (AILA Doc. No. 15120112). The amicus brief argues that the enjoined programs would benefit millions of people and their families and communities, and highlights the human impact of the enjoined programs. p>
November 23, 2015 p>
The Solicitor General of Texas wrote to the clerk of the U.S. Supreme Court, requesting an extension of 30 days to respond to the government's petition for a writ of certiorari. p>
November 20, 2015 p>
The Obama administration filed a petition for certiorari, asking the U.S. Supreme Court to overturn the injunction blocking DAPA and expanded DACA. p>
November 12, 2015
The Congressional Research Service provided a Legal Sidebar titled: Fifth Circuit Declines to Lift Injunction Barring Implementation of the Obama Administration's 2014 Deferred Action Programs, which discusses the November 9, 2015, decision.
November 11, 2015
This PBS Frontline article discusses how President Obama's pledge to overhaul the nation's immigration policies now hinges on how fast, if at all, the Supreme Court considers the main legal challenge to those reforms. As the article outlines, if the Justice Department appeals by November 20, the states would have at least until December 20 to file a brief. If they are granted the normal 30-day extension, that takes them to the end of January. That would push the appeal past the crucial mid-January inflection point, and then the Supreme Court would have to choose to hear the case.
November 9, 2015
The Fifth Circuit affirmed the district court's February 16, 2015, order granting a preliminary injunction against DAPA and expanded DACA, finding that the district court did not abuse its discretion in granting the injunction pending resolution of the merits. The court held that the 26 states challenging DAPA have standing, have established a substantial likelihood of success on the merits of their procedural and substantive APA claims, and have satisfied the other elements required for an injunction. In a 53-page dissent, Judge Carolyn King wrote that she would dismiss this case as non-justiciable, because the immigration enforcement prioritization decisions embodied in the DAPA memorandum have been delegated to the Secretary of Homeland Security by Congress. The dissent also states that the evidence in the record clearly shows that the injunction cannot stand: “[T]he district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny.”
For more information, read AILA's press release, "5th Circuit Again Treads Disappointing but Not Surprising Path."
In a separate decision in this case, the Fifth Circuit held that three Jane Does who believe that they meet the criteria set forth in Secretary Jeh Johnson's November 2014 DAPA memorandum have the right to intervene as defendants in this case.
September 21, 2015
Following the court's instruction, the government submitted a September 2015 status report concerning the 11 identified individuals whose invalidated three-year Employment Authorization Documents (EADs) were not yet retrieved or otherwise accounted for at the time of the August 19, 2015, hearing, even though their DACA status and employment authorization had been terminated. The report states that USCIS has now accounted for all 11 of those outstanding EADs, either by securing the return of the EAD itself, or by obtaining a good cause certification from the individual.
Judge Hanen issued an order releasing all individual defendants, including DHS Secretary Jeh Johnson, from the court's earlier order requiring mandatory attendance at an August 19, 2015, hearing to discuss erroneously issued post-injunction three-year DACA EADs. The order states that the hearing will take place as scheduled.
July 31, 2015
Both the plaintiffs and the defendants jointly submitted a status report, pursuant to the Court's order of July 7, 2015, requesting that the Court cancel the currently scheduled August 19, 2015, hearing. In the alternative, the report suggests that the Court should excuse the attendance of Secretary Johnson and the other high-ranking officials, except Director Rodriquez, and permit the above-described substitution of witnesses. The report discusses: (a) information related to the approximately 2100 post-injunction issuances of three-year instead of two-year EADs and the approximately 500 post-injunction re-mailings of three-year instead of two-year EADs; (b) information related to the approximately 108,000 pre-injunction three-year approvals; (c) any agreement regarding the approximately 108,000 pre-injunction three-year approvals; and (d) any additional discovery requests by Plaintiffs.
The government also filed a motion making these requests. In addition, USCIS Director Leon Rodriguez filed a declaration with the Court, describing the government's efforts to retrieve erroneously issued post-injunction three-year EADs.
For more information, read this Politico article on the joint status report.
July 14, 2015
DHS filed a memo dated 7/14/15 explaining the actions it is taking to retrieve 500 3-year EADs that were approved and mailed prior to the injunction, returned to USCIS as undeliverable, and subsequently re-mailed after the injunction.
July 10, 2015
DHS filed a memo dated 7/10/15 outlining the actions it is taking to retrieve 3-year EADs that were erroneously mailed after the injunction.
July 9, 2015
DOJ filed an Advisory on July 9, addressing concerns expressed by the Court on July 7, 2015, stating: The Government files this Advisory to apprise the Court of (1) new information with respect to three-year Employment Authorization Documents (EADs), and (2) the ongoing measures to address the matters raised in the Court’s July 7, 2015 Order. For more information, see AILA’s posting on the three-year EADs that must be returned.
July 7, 2015
As a result of the injunction, USCIS is requiring the approximately 2,000 individuals to whom three-year Employment Authorization Documents (EADs) were issued after the injunction to return their EADs to USCIS. DACA recipients who received the three-year EADs must return them to USCIS by July 17, 2015. Note that this does not affect EADs that were issued before the injunction. For more information, check out AILA's posting on three-year EADs issued after the injunction in Texas v. United States (AILA Doc No. 15070802).
Judge Hanen also issued an Order, setting a hearing for August 19, 2015, to discuss the 2,000 three-year EADs that were issued. The Order states, "this Court expects the Government to be in full compliance with this Court's injunction. Compliance as to just those aliens living in the Plaintiff States is not full compliance." For more information, check out this Politico article.
May 28, 2015
The Hill reports that the 5th Circuit will hear oral arguments on July 10, 2015, in New Orleans in the Obama administration’s attempt to lift a preliminary injunction from U.S. District Judge Andrew Hanen of Texas, which blocked expanded DACA and DAPA from taking effect.
May 27, 2015
The Hill reports that the Department of Justice will not make an emergency request to the Supreme Court to lift an order blocking expanded DACA and DAPA, and instead will focus on the appeal of the injunction itself at the 5th Circuit, which is expected to proceed in July.
Also, watch AILA's Quicktake with the American Immigration Council's Melissa Crow, as she discusses the 5th Circuit Court of Appeals' decision to refuse to lift the emergency stay on President Obama's executive actions yesterday. (AILA Doc. No. 15052800)
May 26, 2015
The Fifth Circuit refused to lift a temporary injunction on expanded DACA and DAPA. DOJ had asked the Fifth Circuit to reverse Judge Hanen’s decision to temporarily block implementation while the lawsuit worked it ways through the courts. The decision states, “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”
May 8, 2015
Judge Hanen issued a supplemental order, "solely to acknowledge the existence of congressional testimony that confirms the President's statements."
April 30, 2015
DOJ filing, submitted along with an in camera production of privileged document and a privilege log, in response to the Court’s Order of April 7, 2015, stating that “neither that misunderstanding nor the timing of the Government’s notice to the Court concerning this matter was the product of a lack of candor or bad faith or calculated delay.”
April 17, 2015
Recording from oral arguments in the 5th Circuit from Friday, April 17, 2015.
April 7, 2015
Judge Hanen ordered the U.S. attorneys to "file, complete with courtesy copies to the Court and Plaintiffs, the following: (i) any and all drafts of the March 3, 2015 Advisory, including all corresponding metadata and all other tangible items that indicate when each draft of the document was written and/or edited or revised; and (ii) a list of each person who knew about this Advisory, or about the DHS activity discussed therein, and each person who reviewed or approved its wording or filing, as well as the date and time when each person was apprised of this document and/or its contents, or of the DHS activity that is the subject matter thereof. No documents, electronic mails, texts, communications, or tangible items (including without limitation all computer records, hard drives, and servers) of any kind that deal with the Advisory or the subject matters discussed in the Advisory, whether or not owned by the Government, are to be destroyed or erased…. The Government has until April 21, 2015, to comply with this Order. Following their review of the documents produced, the Plaintiff States shall file with the Court a list of any further discovery that they may deem necessary, with a brief summary of why that discovery is relevant. The States have until May 1, 2015, to do so. The Government shall have until May 8, 2015, to respond to the States' request. The Court will then consider those requests and issue an appropriate order as promptly as its schedule allows."
Judge Hanen also denied the government's motion to stay the February 16, 2015 order of temporary injunction.
April 6, 2015
The mayors of New York, Los Angeles, and 71 additional cities and counties filed an amicus brief with the 5th Circuit, in support of the federal government’s bid to reverse an injunction on expanded DACA/DAPA
109 immigration law professors file an amicus brief with the 5th Circuit stating, “Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and expansion of Deferred Action for Childhood Arrivals (“DACA”) are well within the Secretary of the Department of Homeland Security’s (the “Secretary”) express statutory authority to establish national immigration enforcement policies and priorities as well as the Secretary’s broad discretion in enforcing United States immigration laws …. The district court’s findings to the contrary should be rejected, and its grant of a preliminary injunction should be reversed.”
The American Immigration Council, National Immigration Law Center, Service Employees International Union, and other civil rights, labor, and immigration advocacy groups filed an amicus brief in support of the appellant seeking reversal of the preliminary injunction.
For more information, read the American Immigration Council's press release, "Unprecedented Coalition Ask Court to Reverse Texas Ruling Blocking Immigration Initiatives."
March 30, 2015
The Justice Department filed a brief with the 5th Circuit Court of Appeals urging it to reverse a hold Judge Hanen placed on President Obama’s executive actions.
March 25, 2015
The 5th U.S. Circuit Court of Appeals in New Orleans set a hearing date of April 17, 2015, on whether the temporary hold on President Obama's immigration executive actions should be lifted. Each side will have an hour to make their arguments.
March 23, 2015
26 states represented by Governors and Attorney Generals filed a Motion in Opposition of Stay Pending Appeal, urged the 5th Circuit Court of Appeals not to stay Judge Hanen's injunction.
On the opposing side, 14 states filed an amicus brief in support of the motion to stay the district court preliminary injunction requesting that that 5th Circuit lift Judge Hanen's decision.
March 12, 2015
The Justice Department, on March 12, 2015, filed an emergency motion for a stay pending appeal, with attachments, in Texas v. United States, requesting that the Fifth Circuit Court of Appeals stay the district court's nationwide preliminary injunction in its entirety or, at minimum, stay it with respect to implementation in states other than Texas, or states that are not parties to the suit.
On March 12, 2015, fourteen states and the District of Columbia filed an amicus brief with the Fifth Circuit in support of motion to stay district court preliminary injunction.
March 9, 2015
On March 9, the judge set a hearing date of March 19, 2015, and stated: Due to the seriousness of the matters discussed therein, the Court will not rule on any other pending motions until it is clear that these matters, if true, do not impact the pending matters or any rulings previously made by this Court." As such, the Obama administration and the DOJ are now free to take its appeal to the Fifth Circuit Court of Appeals.
On March 5, 2015, the plaintiffs in the case moved for early discovery.
On March 4, 2015, DOJ filed an advisory, stating that “Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by close of business on Monday, March 9, 2015, Defendants may seek relief from the Court of Appeals in order to protect their interests.”
March 3, 2015
On March 3, 2015, DOJ filed an advisory stating that: "Out of an abundance of caution, however, Defendants wish to bring one issue to the Court's attention. Specifically, between November 24, 2014 and the issuance of the Court's Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year EADs for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of three-year periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance."
February 25, 2015
As reported by Politico: The federal judge in Texas who blocked President Barack Obama's latest executive actions on immigration signaled Tuesday that he isn't inclined to rush a decision on the Obama Administration's request to lift the injunction he imposed last week.
U.S. District Court Judge Andrew Hanen's order saying he'll give the states suing the federal government another week to respond means the issue of a possible stay in the case will likely be taken up by a federal appeals court before he rules one way or another.
The Justice Department warned in its stay application Monday that if Hanen did not act on the stay by the end of the business day on Wednesday, the feds would move to a higher court.
The next stop would be the 5th Circuit Court of Appeals in New Orleans. After that, either side could potentially seek relief from the Supreme Court.
February 23, 2015
February 20, 2015
Update Regarding Texas v. U.S. Injunction and DACA EADs
The Department of Justice will be moving for a stay of the district court’s preliminary injunction order with the district court on or before Monday, and then, if necessary, will assess additional steps.
February 17, 2015
February 16, 2015
District Court Grants Preliminary Injunction in Lawsuit Challenging DAPA and DACA Expansion (AILA Doc. No. 15021762)
January 28, 2015
Brief for amici curiae for the mayors of New York and Los Angeles, the Mayors of 31 additional cities, the U.S. Conference of Mayors, and the National League of Cities in opposition to plaintiffs’ motion for preliminary injunction.
January 12, 2015
States File Amici Curiae Brief in Support of Obama Immigration Actions
Amici curiae brief in opposition to plaintiffs’ motion for preliminary injunction, filed by Attorneys General from Washington, California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont and the District of Columbia.
December 29, 2014
Amici curiae brief of American Immigration Council, American Immigration Lawyers Association, Define American, National Immigrant Justice Center, National Immigration Law Center, New Orleans Workers’ Center for Racial Justice, Service Employees International Union, Southern Poverty Law Center, and United We Dream in opposition to plaintiffs’ motion for preliminary injunction.
December 24, 2014
Defendant’s memorandum of points and authorities in opposition to Plaintiff’s motion for preliminary injunction.
December 3, 2014
Complaint filed by 17 states in U.S. district court seeking declaratory and injunctive relief, alleging that the Obama Administration’s immigration executive actions violate Take Care Clause of U.S. Constitution and Administrative Procedure Act (APA). (State of Texas, et. al, v. U.S., 12/3/14) (AILA Doc. No. 14120440).
Cite as AILA Doc. No. 14122946.