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DOJ Files Emergency Appeal in Fifth Circuit to Lift Hanen's Injunction of DAPA and Expanded DACA

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Today, the United States Department of Justice filed an emergency appeal for a stay of Judge Hanen’s preliminary injunction in the case of Texas v. United States. Hanen issued his preliminary injunction on the implementation of expanded DACA and DAPA on February 16, 2015. A link to the DOJ”s motion can be found here.

The brief begins:

The Federal Government seeks an immediate stay pending appeal of a nationwide preliminary injunction against the Department of Homeland Security (DHS). The Secretary of Homeland Security (Secretary) seeks to effectively prioritize the removal of aliens who have recently crossed the border, committed crimes, or threaten public safety and national security by, inter alia, establishing guidelines for considering requests for temporarily deferring removal of other aliens who pose no such threats and have longstanding and close family ties to the United States. The preliminary injunction restrains the exercise of that prosecutorial discretion, a quintessentially executive function that is traditionally unreviewable. In so doing, it undermines the Secretary’s authority to enforce the Nation’s immigration laws by disrupting the Secretary’s comprehensive effort to effectively allocate limited enforcement resources.

The district court’s order is unprecedented and wrong.

The DOJ brief lays out a strong case as to why Hanen’s ruling is “unprecedented and wrong.” There has been a lot of analysis by legal scholars backing up that position. Also, Hanen’s ruling was assailed by advocates.

In the conclusion of its motion, DOJ brief asks for a nationwide stay, but also provides an option to limit the stay to Texas:

The preliminary injunction should be stayed pending appeal. At a minimum, the injunction should be stayed with respect to: (1) States that are not parties to this suit; and (2) plaintiff States other than Texas.

The Department of Justice is hoping for fast action on its motion, asking the Court to rule within 14 days. The timing is, of course, up to the Court. And, the Fifth Circuit is known as a conservative circuit. A lot will depend on which three judges are chosen for the panel to hear this appeal.

We’ll have more as this unfolds.