States, Governors File Suit Against President’s Executive Actions on Immigration

Various states and four governors filed suit on December 3, 2014, challenging several of President Barack Obama’s recent executive actions on immigration, announced on November 20 and detailed in Department of Homeland Security (DHS) memoranda. The lawsuit singles out a DHS directive on expanding deferred action for childhood arrivals (DACA) for certain individuals who came to the United States as children and creating a new deferred action program for certain parents of U.S. citizens or permanent residents. The lawsuit claims that the directive constitutes a “unilateral suspension of the Nation’s immigration laws [that] is unlawful.”

The lawsuit contains numerous quotations from President Obama stating that he can’t change laws himself and needs Congress to pass immigration reform. The suit notes that later, however, he expanded DACA and said, “I just took an action to change the law.” White House spokeswoman Brandi Hoffine responded, “The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and we are confident that the president’s executive actions are well within his legal authorities.”

Shortly after the mid-term elections in November 2014, President Barack Obama initiated various executive actions on immigration. The actions challenged in the lawsuit include:

• Expanding DACA to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. Under President Obama’s executive action, DACA eligibility is expanded to cover all undocumented immigrants who entered the United States before the age of 16, not just those born after June 15, 1981. The entry date is adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf. 
• Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), includes individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf. 

• A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama’s legal authority to expand the DACA program and to establish the DAPA program (PDF) 
• The full text of the states/governors lawsuit. 
• The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available at http://www.dhs.gov/immigration-action. Additional memoranda are available at http://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-modernizing-and-streamlining-us-immigrant-visa-s (modernizing and streamlining the U.S. visa system) and http://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-creating-welcoming-communities-and-fully-integra (establishing a White House Task Force on New Americans).