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On Monday, November 9, 2015, the Fifth Circuit in Texas v. United States, 2015 WL 6873190 (5th Cir. 2015), upheld a nationwide preliminary injunction against one of the Obama administration's signature approaches to the immigration crisis, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). With unusual speed, the Obama administration filed a Petition for a Writ of Certiorari on November 20, seeking to overturn that decision.
DAPA followed the previous initiative, Deferred Action for Childhood Arrivals (DACA), in which the Department of Homeland Security had issued instructions to DHS personnel concerning the treatment of non-citizen children who have arrived in the country without proper documentation. These instructions, known as the DACA Memo, purported to direct the agency's "exercise of prosecutorial discretion" in enforcement of the immigration laws. The DACA Memo stated several criteria to qualify for "deferred action," a term referring to a temporary assurance that an individual would not be deported and could apply for work authorization.
Like DACA, the DAPA memo directed DHS personnel to take a similar approach with respect to another group of undocumented aliens, parents of American citizens or lawful permanent residents. This memo set out five specific criteria to qualify for deferred action, including continuous residence since 2010 and "not an enforcement priority" under the terms of a previous memo. The DAPA memo emphasized that each individual was to be considered on a case-by-case basis. It also stated deferred action did not "confer any form of legal status in this country," but that the individual would, for a limited time, be "permitted to be lawfully present in the United States." The DAPA memo explained that an individual granted deferred action may apply for work authorization and a Social Security Number. The district court also held that a DAPA beneficiary would be eligible for earned income tax credits with a Social Security Number.
Leading several states, Texas challenged DAPA on various grounds. DHS argued Texas and the others lacked standing and that the matter was otherwise not justiciable. Texas essentially based its standing claim on the costs involved in processing and granting applications for driver's licenses to those "lawfully present" in the country under the program, noting that it would not have to accept applications...