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Texas v. United States - 809 F.3d 134 (5th Cir. 2015)


As an affirmative agency action with meaningful standards against which to judge it, the Deferred Action for Parents of Americans and Lawful Permanent Residents program is not an unreviewable agency action committed to agency discretion by law. 5 U.S.C.S. § 701(a)(2).


In June 2012, the Department of Homeland Security (DHS) implemented the Deferred Action for Childhood Arrivals program (DACA). In the DACA Memo to agency heads, the DHS Secretary set forth how, in the exercise of prosecutorial discretion, DHS should enforce the Nation's immigration laws against certain young people, and listed five criteria that should be satisfied before an individual is considered for an exercise of prosecutorial discretion. The Secretary further instructed that "no individual should receive deferred action . . . unless they first pass a background check and requests for relief . . . are to be decided on a case by case basis." Although stating that "for individuals who are granted deferred action . . ., U.S. Citizenship and Immigration Services (USCIS) shall accept applications to determine whether these individuals qualify for work authorization," the DACA Memo purported to confer no substantive right, immigration status or pathway to citizenship. At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014. In November 2014, by what is termed the "DAPA Memo," DHS expanded DACA by making millions more persons eligible for the program and extending "the period for which DACA and the accompanying employment authorization is granted . . . to three-year increments, rather than the current two-year increments." The United States appeals a preliminary injunction, pending trial, forbidding implementation of DAPA.


Was the implementation of DAPA properly enjoined?




Because Texas would suffer injury from implementation of the DAPA program by incurring significant costs in issuing driver's licenses to DAPA beneficiaries, the States had U.S. Const. art. III standing to challenge DAPA. The States fell within the relevant zone of interests of the INA in order to seek review under 5 U.S.C.S. § 702. Judicial review was not precluded under 5 U.S.C.S. § 701(a)(2). Implementation of DAPA was properly enjoined because the States had proven a likelihood of success on the merits on their procedural claim that DAPA was a substantive rule that had to be submitted for notice and comment under 5 U.S.C.S. § 553 and on their substantive claim that DAPA was contrary to the INA, and the States had also satisfied the other requirements for a preliminary injunction.

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