The Fifth Circuit just denied the government’s request to allow its enjoined immigration nonenforcement program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), to go forward while the states challenge DAPA on the merits.
In a 68-page opinion by Judge Jerry E. Smith, the court allows the district court injunction to stand for now. The court rejects the government’s contention that the states don’t have standing to challenge DAPA and upheld the district court’s conclusion that DAPA is more than just nonenforcement (due to the issuance of work authorization). In addition, the court held that DAPA is a substantive rule subject to notice-and-comment under the Administrative Procedure Act, not merely a statement of policy.
One member of the panel, Judge Stephen Higginson, dissented.