Federal Judge Blocks Deferred Action Expansion: ‘Speed Bump’ or Signpost?

Deferred Action for Childhood Arrivals program requirements. (U.S. Citizenship and Immigration Services)

Deferred Action for Childhood Arrivals program requirements. (U.S. Citizenship and Immigration Services)

Alex Emslie
KQED

A federal judge’s order Monday delaying, and possibly halting, the Obama administration’s plan to expand deportation protections for some 4 to 5 million people illegally in the U.S. received condemnation from Bay Area immigrant advocacy groups and many California leaders.

U.S. District Judge Andrew S. Hanen, of Federal District Court for the Southern District of Texas in Brownsville, granted a preliminary injunction to 22 plaintiff states (and leaders of others) suing the U.S. government to stop the expansion of the 2012 Deferred Action for Childhood Arrivals program. DACA allows some children brought to the country illegally to apply for a temporary quasi-legal status. They can legally work and live in the U.S. for two years, any deportation actions against them “deferred” — not as a change to the law, the Department of Justice argues, but as an exercise of law enforcement discretion.

The DACA program in its original form isn’t subject to yesterday’s order, and so it will continue. Nearly 700,000 people have formalized their status through the program to date, according to Hanen’s order.

The judge blocked an expansion to DACA that would extend the deferred period from two to three years and remove an age cap requiring the applicant to be born after 1981. It was scheduled to roll out Wednesday. Hanen’s order also stopped a similar program that would allow the parents of U.S. citizens or lawful permanent residents to apply for three years of deferred action slated to start in mid-May. For “Dreamers,” young people able to take advantage of DACA and work legally after college graduation, a way to formalize the immigration status of their parents was the logical next step.

Depending on who’s talking, yesterday’s preliminary injunction is either just a temporary legal hurdle that will be overturned or a solid prediction of how courts will rule on Obama’s attempt to use executive authority to allow some undocumented immigrants relief from fear of deportation.

KQED’s Beth Willon reports that immigrant advocacy groups gathered at San Jose’s Sacred Heart Church Tuesday morning called the preliminary injunction a “speed bump” and told families to stay positive despite the order.

“My story in the United States has been one of dedication, discipline, hope and a lot of patience,” Microsoft software engineer Felipe Salazar said. “And true to the American Dream, it began to pay off when DACA was enacted. The actions in immigration that ultimately became DACA were possibly the greatest thing that happened to me and my family.”

Salazar said he moved with his parents to the U.S. from Colombia in 2001. He graduated from high school in 2008 and finished a master’s degree by the end of 2011, about six months before the first version of DACA took effect. He applied, was accepted and can legally work today because of the program.

“This is always an ongoing fight.” he said. “This is just temporary, so I encourage everyone to still gather their documents and get ready to enroll as soon as it becomes available.”

Salazar’s parents don’t have access to the same kind of relief.

“These programs didn’t originally deal with some of the family reunification issues that are so important to immigration law,” said Kevin Johnson, dean of the UC Davis School of Law. He said expanding the program for parents was the next logical step and the Deferred Action for Parents of Americans (yep, DAPA) would have done that, at least temporarily.

Johnson said the ruling would make it more difficult for millions of people in the country illegally to live.

“The promise that something good was going to happen with immigration status has been delayed once again,” he said.

Cecilia Muñoz, director of the White House Domestic Policy Council, said Tuesday that the Department of Justice plans to appeal the order to the 5th U.S. Circuit Court of Appeals.

It won’t stop there, Johnson said.

“Whoever loses is going to take it to the Supreme Court,” he said. “The stakes are so high and the public attention is so focused, it’s hard to see a final resolution in this case until it gets to the high court.”

Another legal expert, Chapman University law Professor John Eastman, agreed the case would eventually end up before the Supreme Court, but not on this appeal.

“The judge’s ruling that there is a very good likelihood of success on the merits … that what the president is doing is illegal — I think that’s where we’re going have the ongoing fight, and that’s ultimately what will be resolved by the Supreme Court, but not at this stage.”

Eastman said he agrees with Hanen’s order, which while not final, indicates the plaintiffs are likely to succeed in the case.

“The president, in choosing not just not to enforce the immigration laws — that’s bad enough, the judge said — but to give a lawful status that the law does not allow for, that’s where the president clearly exceeds his statutory authority,” Eastman said.

Rep. Zoe Lofgren (D-San Jose) said a similar suit was previously dismissed by a different federal judge, a point the White House echoed Tuesday.

“There was a lot of sense that the Republican governors did a little forum shopping and found the judge they thought might best rule their way,” she told KQED’s Ted Goldberg. “Obviously, this is not the end of the matter. An appeal will be made, and I am hopeful that this is just a temporary setback.”

Gov. Jerry Brown and California Attorney General Kamala Harris were among other state leaders expressing disappointment in the order.

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