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Understanding the latest blow to DAPA & expanded DACA (and why timing may be everything.)

The U.S. Court of Appeals for the Fifth Circuit recently disappointed those hoping DAPA and expanded DACA would be available soon. Not only does this mean people who would benefit from the programs will have to wait even longer, but further delays could jeopardize DAPA and expanded DACA themselves.

(For those unfamiliar with the terms, "DAPA" would allow some foreign nationals with U.S. citizen or permanent resident children to receive work permits and protection from removal, while "DACA" gives those benefits to some foreign nationals who entered the country as children. DACA is currently in existence, but Obama announced an expansion of the program which would have made more people eligible.)

Last week, the panel declined to lift a lower court's bar on those programs. Many people know the latest decision prevented DAPA and expanded DACA from going forward, but do not fully understand why or what is going on. This is not surprising, since the case has grown very complicated. One lawsuit has expanded to three different processes, all handled at once, and at very different speeds.

This post explains why the decision was important, and how it fits into the court fight for DAPA and expanded DACA. While there is still hope that DAPA and expanded DACA will be a reality, time may eventually be as important as the actual legal decisions in this case.

1. The main case against DAPA and expanded DACA.

Led by Texas, 26 states filed a lawsuit in a federal district court to stop DAPA and expanded DACA. The legal issues in this case are complicated, but the states essentially argued that the programs exceed the federal government's authority and would have been implemented without the proper notice procedures.

This case is still in the preliminary stages. It will likely be several months, or more, before the district court decides it. That decision, however, will likely not end this case. It is almost certain that whichever side loses will appeal the case to the United States Court of Appeals for the Fifth Circuit. It is hard to know how long this appeal will take, but it would probably be at least several months. (Federal appeals can take years, but given the urgency and importance, they likely would handle it much more quickly).

The Fifth Circuit decision may not even be the last word on the matter. After the appeals court ruling, the losing side could ask the Supreme Court to review the decision, though the Court can deny this request. But if the Supreme Court reviewed the decision, it would of course delay a final decision even more.

Therefore, predicting how long this main case will take is very difficult, since it depends on the scheduling decisions of multiple federal courts. At a minimum, it will be several months, and perhaps even years, before a final decision.

2. The injunction during the main case.

After filing the challenge to DAPA and expanded DACA, the states obtained an injunction on the programs. This means that the district court judge ordered the programs to stop while the main case is pending. The injunction was based on a finding that there is a substantial likelihood that the states will win the main case, and that they would be harmed if the programs were allowed to go forward before the case is over. The injunction, not the case challenging DAPA and expanded DACA itself, is the actual reason that the programs cannot be implemented right now.

The federal government appealed this injunction, and the appeals court scheduled a hearing on the matter for early July. It is hard to know when the court of appeals will decide on the injunction, but it will likely be a few months after the hearing. As with the main case, the losing side in the appeal of the injunction can ask the Supreme Court to review the decision, but the Court can decline this request.

If the injunction is lifted, then DAPA and expanded DACA will be allowed to go forward while the main case is heard. The programs however, would be stopped if the federal government loses the main case. Similarly, even if the injunction is not lifted, DAPA and expanded DACA would still be implemented if the federal government wins the main case and the President wishes to continue the programs (more on this below).

3. The stay of the injunction- last week's loss.

The federal government also asked the court of appeals to "stay" (or stop) the injunction against DAPA and expanded DACA while it heard the appeal of the injunction. If this sounds confusing, it is. Remember that the injunction (discussed in #2, above), stopped the programs while the main case was heard. The stay request asked the court of appeals to lift the injunction while it considered the appeal of the injunction during the main case. Essentially, they asked to enjoin the injunction.

The appeals court denied the stay request on May 26, 2015. This is the recent decision which disappointed people hoping that DAPA and expanded DACA would be available soon. While the federal government could have requested the Supreme Court review the denial, it has apparently declined to do so, and will instead focus on the injunction itself.

When could DAPA and expanded DACA start, and why is timing so important?

Therefore, any decision impacting DAPA or expanded DACA will come after the July hearing. Again, no one knows how fast the court will move, but likely there will be a decision in late summer or fall. Predicting when the matter will be completely decided, however, is much more difficult, and it could be well over a year.

There will, of course, be a new President in January 2017, and some candidates have strongly opposed these programs. Remember, a key issue in this case is whether the federal government has the authority to implement DAPA and expanded DACA. While I believe President Obama has the power to create and implement these programs, the new President will also have the power to end them. If this case is not resolved before the new President takes office, the federal government could withdraw its support of the programs in court, or decline to implement the new programs, even if the courts find them to be lawful.

Realistically, the programs may need to start well before the 2016 election if they are going to be effective. DHS needs a considerable amount of time to create forms, train personnel, etc., not to mention process the applications. Considering even a basic application like a work permit renewal can take four months, and DHS estimates over 4 million people are eligible for DAPA and expanded DACA. It would certainly be an extended period between the resumption of these programs and anyone actually receiving benefits.

Therefore, while last week's court decision to keep the injunction in place for now will not end DAPA and expanded DACA, if the injunction is not lifted later this year, time may eventually be just as important as the law.

Bean + Lloyd is an immigration law office in Oakland, California emphasizing family-based immigration, citizenship, removal defense and deferred action.

Follow us on Twitter @beanlloydllp

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