Timeline: What’s Happening with Obama’s Executive Action Program?
Like many other immigration attorneys, I receive several calls every week inquiring about the status of Obama’s Executive Action Immigration program, which was first announced back in November of 2014. Unfortunately, for now the answer is still that the timeline – and the ultimate implementation of the program itself – is still in large part up in the air. The best answer for people who believe they qualify is to stay abreast of the latest developments by consulting trusted sources, such as the American Immigration Lawyers Association, the National Immigration Law Center, or an immigration attorney.
That’s the short answer, but I thought I’d also take some time this week to provide some details about where exactly Obama’s program, and the litigation surrounding it, stands at this point.
In a previous blog , I discussed the current roadblock on the path to implementing the executive action program. To summarize, Obama’s program is being challenged by 26 states, who are claiming that the program constitutes an impermissible overreach of his executive authority as president.
Soon after the suit was initiated in a federal district court in Brownsville, Texas, the presiding judge, Hon. Andrew Hanen, granted the states’ request for an injunction on the implementation of the executive action program pending a result of the underlying litigation. In response, the Department of Justice filed an emergency “stay” of that injunction with the 5th Circuit Court of Appeals, and also filed a formal appeal of the injunction in the same court.
So, what does all this legal wrangling mean for potential applicants? What actually has to happen in order for Obama’s plan to become a reality for those it’s supposed to help? How long will it take? Below are some of the milestones to look out for when following the litigation:
1. The 5th Circuit’s Decision on the “Emergency Stay”
The first battle to be decided will be the 5th Circuit’s decision on the Emergency Stay filed by the Department of Justice. If the court rules against Judge Hanen and with the government/Obama administration on this issue, it will mean that the Department of Homeland Security will be able to immediately begin working on preparations for the implementation of the Executive Action program, and can even start accepting and approving applications.
Timeline:
The 26 suing states are supposed to file their response motion to the Emergency Stay by March 23, and the Department of Justice has asked for an expedited decision to be issued just days later. We don’t know whether the 5th Circuit will comply with the request to expedite, but it’s a good bet we’ll have a decision on this within a month.
2. The 5th Circuit’s Decision on the Appeal of the Injunction
In addition to the request for the emergency stay, the Department of Justice also filed the appeal of Judge Hanen’s injunction, which they also requested to be expedited. In this decision, the 5th Circuit will make the final ruling on whether the injunction stands. If the 26 states win this battle, it means that Obama’s Executive Action program will definitely not take effect until there is a final decision on the underlying lawsuit. If the Department of Justice wins, people will be able to apply for and receive benefits under the program right away, or at least as soon as the government is able to prepare the forms and procedure for applying.
Timeline:
The Department of Justice is expected to file its brief appealing the injunction by March 30, and the 26 states will have to file their response within 33 days. There will also be an oral argument involved, and the very earliest that will happen is June. After that, it’s anyone’s guess as to how long the court will take to issue a decision- it could be a quick turnaround, or several months.
3. Judge Hanen’s Decision on the Underlying 26-State Lawsuit
This is the big one. The decision as to whether the lawsuit’s assertion that Obama’s plan constituted executive overreach will determine the ultimate survival of the program. However, while the first decision will come from Judge Hanen in the Texas District Court, it will almost inevitably be appealed to higher courts – first the 5th Circuit, and possibly even the Supreme Court.
Timeline:
Don’t hold your breath. By the time this one winds its way up the courts it could be years. This is why the decision on the injunction, discussed above, is so important to potential applicants.