The Fifth Circuit Court of Appeals has affirmed the preliminary injunction against President Barack Obama’s executive action that would potentially have shielded approximately 4.4 million undocumented immigrants from deportation and allowed them to immediately apply for work authorization. President Obama announced his immigration plan, which included an expansion of the Deferred Action for Childhood Arrivals (DACA) program and created a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), nearly a year ago, but quickly encountered hurdles when his executive action was halted by the U.S. District Court for the Southern District of Texas in response to a lawsuit brought by 26 states. The recent Fifth Circuit decision in State of Texas v. United States further postponed President Obama’s plan to implement expansive immigration relief for millions of undocumented immigrants living in the United States and raises some contentious issues about the extent of the President’s executive power.

On November 9, 2015, the Fifth Circuit affirmed the lower court’s injunction against President Obama’s deferred deportation and work authorization policies, finding that the federal government failed to comply with the Administrative Procedure Act, which requires that significant changes to immigration procedures undergo a public notice and comment period before becoming law. In support of its holding, the Fifth Circuit cited the impact on the state of Texas and the breadth of the proposed changes. The court found that if DAPA-eligible immigrants applied for driver’s licenses in Texas, the state would spend approximately $174 per person, costing the state millions of dollars, which would be overly burdensome on states and essentially mandate state-subsidized benefits. The court also found that the deferred action programs would “change the immigration classification of millions of illegal aliens on a class-wide basis” and that such a reclassification was not permitted under the terms of the Immigration and Nationality Act of 1965. The court noted that, although Obama’s executive action instructed agencies to review applications on a case-by-case basis and exercise discretion, these statements were “merely pretext,” considering that almost all of the applications for the 2012 deferred action program were granted. The 2–1 decision included a dissent written by Fifth Circuit Judge Carolyn Dineen King, arguing that the preliminary injunction was a “mistake” and criticizing the Fifth Circuit for taking nearly four months to issue a decision.

The Obama administration is now seeking immediate review of the Fifth Circuit’s decision through the filing of a certiorari petition with the Supreme Court. The 26 states, led by Texas, challenging President Obama’s executive actions have 30 days to file a response. If Texas delays filing a response, the case may not reach the Supreme Court in time for a decision to be issued before the end of President Obama’s term. However, assuming there are no further delays and the Supreme Court agrees to review the case, oral arguments would likely be heard in April or May with the Supreme Court issuing a decision by the end of the current term in June. If the Supreme Court upholds the executive actions on immigration, President Obama could then begin implementing his deferred action policies in late summer, within the last few months of his presidential term.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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