5th Circuit Decision Further Delays Obama’s Executive Action Immigration Programs

In a disappointing (if not surprising) decision issued May 26th, the 5th Circuit Court of Appeals in New Orleans hit the “pause” button on the implementation of Obama’s executive action immigration initiative once again. In the decision, two members of the three judge panel found that the injunction had sufficient merit to be upheld while the case progresses through the legal system, and that the federal government had not proven it would be harmed if the programs – Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) – were delayed.

While this is certainly a disappointment to the millions of immigrants the new programs would effect, it should by no means be construed to be a final defeat.  The 5th Circuit’s ruling is only a rejection of the administration’s request to grant an emergency stay of the injunction – which would ostensibly open the program up to applicants as soon as the government issued the regulations on how to apply.  The 5th Circuit’s next task is to issue a decision on the actual appeal of the injunction, which is a more involved process. The court is now scheduled to hear oral arguments on that appeal on June 6, and will likely take months to issue a decision. Despite the denial of the emergency stay, the 5th Circuit could still decide the appeal in the administration’s favor.

One major concern that I and other immigration advocates have about the complex litigation which has surrounded Obama’s immigration initiatives is that even when the programs do come into effect many undocumented individuals will be afraid to access them because they will not trust that they’ll remain intact.  This is an understandable concern, given the fact that the status of the programs at this point is entirely uncertain. The longer that DAPA and expanded DACA remain only goals of the Obama administration and not an accessible reality, the harder it may be to convince those eligible that it’s safe to apply. The process may simply appear to some people to be political maneuvering instead of a legitimate government program that undocumented individuals should feel comfortable “giving up” their information to. At this point, the Obama administration has the option of appealing the denial of the emergency stay to the Supreme Court, which many legal scholars believe is a likely scenario.  The highest court in the country would then get to decide whether the executive action programs take affect while Obama is still in office, or whether the legal wrangling at the state level will push the implementation out further. However, even if the emergency stay is again upheld by the Supreme Court, there’s still a possibility that the programs could come into effect before Obama’s successor is chosen in the November 2016 presidential elections if the 5th Circuit changes course and lifts the injunction on appeal.

In a recent statement, Leslie Holman, the president of the American Immigration Lawyers Association, said that:

(T)he denial of this stay just means that the incredibly important initiatives that the President announced last November are still in limbo, as are the lives of millions of parents of U.S. citizen and lawful permanent resident children and young people who grew up American in all but name.”

It has certainly been disheartening to field calls from the many clients whose lives are in the balance of this epic legal battle, and to inform them that while I remain optimistic about the final outcome, they’ll need to have patience in abundance to see it to fruition.