Texas Judge Rules To Delay Implementation of Obama’s Executive Action

Immigration Reform

Federal Judge Andrew Hanen of the Southern District of Texas in Brownsville just ruled that the Obama Administration’s executive action on immigration reform programs, announced in November of 2014 and set to go into partial effect on February 18, must be temporarily halted.

Judge Hanen issued an injunction just two days before the first phase of Obama’s program was set to go into effect, frustrating the administration and the millions of immigrants that were expected to be eligible for benefits.  The injunction is based on the “notice and comment requirement” of the Administrative Procedures Act, or the “APA,” which deals with the requirements for providing notice and comment periods in the Federal Register before enacting new regulations through executive action.  Judge Hanen’s injunction ruling states that if the Obama administration “wanted to do these things it should have provided notice in the Federal Register, with period for comment.”  Not doing so, he claims, puts the actions in violation of the law.

The injunction, however, is just a way to delay the implementation of Obama’s plan – it does not address the ultimate legality of the executive orders. Instead, it simply states that the lawsuit filed in Hanen’s court by 26 Republican-led states was sufficient to justify postponing the implementation of the programs while the suit moved forward.  While the injunction issue is being litigated, Judge Hanen will continue to move forward on the original lawsuit. Notably, 13 states, 30 cities, and the District of Columbia have all filed briefs siding with the administration and aligning themselves in opposition to the Republican-led challenge.

What’s Next?

In response to the injunction, Department of Justice is expected to immediately file a “stay,” hoping to temporarily remove the injunction order issued by Judge Hanen.  If this stay is granted, the programs will move forward while we wait for the injunction to receive full consideration on its merits in the Fifth Circuit, which will probably take 4-5 months, assuming the court chooses to put it on an expedited hearing calendar, or 7-8 months if it’s placed on the court’s regular docket.   We hope to have a decision from the Fifth Circuit on the stay within the next several weeks.

If the government’s stay is granted, we can start applying for the expanded DACA program right away, and the program will be safe at least until there is a final decision on the injunction or on the underlying lawsuit.  If the stay is denied, the injunction could still be shot down when the Fifth Circuit takes it under full consideration later this year.

Meanwhile, we’ll continue to wait for a decision from Judge Hanen on the ultimate merits of the lawsuit, and the appeals that will inevitably follow.

Stay tuned to our blog for updates on this constantly evolving and politically volatile situation.