Federal Government Files Notice of Appeal and Motion for Emergency Stay

Contributed by Koby Polaski, Senior Attorney, Edwards Office

As expected, the Federal Government today filed a Notice of Appeal and Motion for Emergency Stay of Judge Hanen’s order issuing an injunction in the case of Texas v. United States.

If granted, the Stay would allow United States Citizenship and Immigration Services (USCIS) to begin accepting applications for expanded DACA and continue work to implement DAPA. An injunction issued by Texas Judge Andrew Hanen temporarily halted the implementation of both programs.

The twenty-six states who filed the lawsuit in Texas challenging the legality of President Obama’s executive action contend that DAPA and expanded DACA are both subject to the Administrative Procedures Act (APA). If subject to the APA, the government would have been required to undergo a “notice-and-comment period” before implementing the new programs. In the Motion for an Emergency Stay, the federal government argues that the deferred action guidance is an exercise of prosecutorial discretion that is neither subject to challenge by the States, nor required to be issued through notice-and-comment rule making. The government requests a ruling on the Stay by the close of business on February 25; absent a ruling, it will consider seeking relief before the Fifth Circuit Court of Appeals.

The filing of this Emergency Stay provides some welcome good news. We hope and expect for more as this litigation plays out. There are strong arguments in support of the government’s case, and previous lawsuits in other district courts have failed. The deferred action guidance was a lawful exercise of the president’s executive power, and we anticipate that both expanded DACA and DAPA will eventually move forward. Stay tuned to the Joseph & Hall P.C. blog for the latest developments.