Cross-posted from Huffington Post:
Since Judge Hanen issued his controversial midnight order blocking President Obama's executive actions on immigration there has been a lot of speculation about what will happen next. Will the Court of Appeals quickly reverse the ruling? How long will it take for the case to wind its way through the appellate courts? Will the U.S. Supreme Court have to weigh in?
I've been answering questions like these on DAPAQuestions.org and will continue doing so, but there are three key questions that many people are asking today.
What does the Republican Lawsuit against expanding DACA and the new DAPA program mean for the 5 million immigrants that would qualify for these programs?
The Republican lawsuit against DACA expansion and DAPA was undoubtedly a bump in the road, but it is not the final word. The law is clear and DAPA/DACA expansion policies are legal, despite what Judge Hanen thinks. Until the Texas case is resolved on appeal, DREAMers and parents who were preparing to apply should continue to do so.
Importantly, applicants for the DACA program created in 2012 can and should continue to apply. The lawsuit does not affect them.
Applicants for DACA expansion (the changes announced in 2014) should continue to collect documents and other proof showing of arrival in the U.S. before the age of 16 and that they were in the U.S. on January 1, 2010.
DAPA applicants should collect all necessary proof that they've lived in the U.S. since before January 1, 2010 and, on November 20, 2014--the day President Obama announced his immigration executive actions--were the parent of a U.S. citizen or lawful permanent resident.
And, of course, applicants should be prepared to pay the expected $465 application filing fee which includes the cost of criminal background checks.
Does the Republican lawsuit block all of President Obama's immigration actions?
No! While the future of DAPA and DACA expansion could be tied up in the courts for the next few weeks or (maybe even months), Republicans cannot touch Obama's immigration actions that are already being implemented.
Judge Hanen's order does NOT affect the original, existing DACA program. Individuals who qualify for deferred action based on the criteria outlined in 2012 can and should continue to apply.
Judge Hanen's order also has NO effect on the immigration enforcement priorities that President Obama laid out as part of his executive actions. These new priorities, which are detailed in a memorandum from Homeland Security Secretary Jeh Johnson, direct immigration agents to focus on the deportation of aliens who are national security threats, felons, criminal gang members, visa abusers and serious immigration violators.
This means that DREAMers and parents of U.S. citizens who meet the criteria for DACA expansion and DAPA generally should not be deported--even if they come into contact with ICE or CBP. They are only at risk if their deportation would service an "important federal interest" such as individuals who pose a threat to community safety.
Nobody has (or can) seriously question whether or not President Obama's immigration enforcement priorities are legal. And they go beyond the confines of DACA and DAPA to prevent unjust deportation of other undocumented immigrants with roots and ties to the United States.
But how can we trust that these priorities are being implemented?
This is an important question given past experience with various iterations of "enforcement priorities" memos.
The good news is that so far ICE field offices seem to be following the new enforcement priorities. In Ohio, for example, ICE agents took it upon themselves to postpone the imminent removal of an undocumented mother of a U.S. citizen child after the policies were announced. While the woman still needs DAPA to get stability, at least her low priority removal status allows immigration enforcement agents to focus on dangerous criminals and national security risks. Vox's Dara Lind reportedlast week that 1000 people have been released from immigration custody since DHS released its enforcement priorities in November.
Nevertheless, immigration advocates must remain vigilant. If a DREAMer, undocumented parent or long-term resident is apprehended, detained or facing removal, ICE officials should be notified immediately that the person is not an enforcement priority and should not be detained or removed. Ideally this should be done through a licensed attorney who is experienced with the deferred action process. If local officials appear to not be following priorities, attorneys should sound alarm bells to higher immigration agency authorities and immigration advocacy groups likeAmerica's Voice Education Fund who can work to ensure that ICE agents closely follow the President's smart enforcement priorities.
David Leopold is an immigration attorney and past president of the American Immigration Lawyers Association.