Fifth Circuit Court Denies Justice for DACA and DAPA-eligible individuals

On May 26, 2015, two of the three Fifth Circuit Court of Appeals' judges prevented the expanded DACA and DAPA program from going forward, and allow millions of people who are working without authorization and without any legal status some relief to contribute to our economy. 

In its decision, the Court of Appeals reasoned that the State of Texas would lose millions of dollars for granting drivers' licenses to DAPA and DACA recipients.  That is because the State subsidizes each driver's license they issue, approximately $130.89 per license.  Though the U.S. Government, which is defending the DACA and DAPA program, argued that Texas could raise the fee and stop subsidizing licenses, the Court of Appeals held that Texas having to choose between subsidizing licenses and raising their fees injures the State.  

Part of the problem with the case is that the Fifth Circuit does not understand how immigration law works.  In the memo that established the DAPA program and expanded DACA, the Secretary of the Department of Homeland Security states that "Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States."  Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, Secretary Jeh Johnson, at 2, Nov. 20, 2014.  However, the Fifth Circuit states that the memo is an "affirmative act ... conferring "lawful presence" on a class of unlawfully present aliens."  Texas v. United States, No. 15-40238, 2015 WL 3386436, at *9 (5th Cir. May 26, 2015).  DHS cannot confer "lawful presence" to any individual, only "lawful status," which is outlined in the memo.  The Fifth Circuit continues to refer to the granting of "lawful presence" - but there is no such term in immigration statutes or regulations.  

This is one of the many issues with the case.  Ultimately, it is important to be ready in the future if you want to take advantage of these programs.  Additionally, be sure to renew your DACA status if you already have received DACA.