DHS Rescinds DAPA, U.S. v. Texas to draw to a close.

Originally published by Josh Blackman.

At long last, the case of United States v. Texas will soon draw to an end. On January 19, 2017 (the day before the inauguration), Judge Andrew Hanen granted a joint consent motion to stay proceedings for two months. On May 17, the court granted the parties an additional three months. Today was the deadline. I had marked it off on my calendar, and largely expected the parties to request another continuance. Just the opposite.

Attached to the motion to stay proceedings for another two weeks, was a memorandum from the Secretary of Homeland Security, announcing that he has rescinded DAPA:

On June 15, 2017, Secretary Kelly issued a memorandum providing further guidance on the November 20, 2014, policy at issue in this case. This memorandum, “Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (‘DAPA’),” rescinds the November 20, 2014 policy, noting “the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities.” See Ex. A. The memorandum “does not alter the remaining periods of deferred action under the Expanded DACA policy granted between issuance of the November 20, 2014 Memorandum and [this Court’s] February 16, 2015 preliminary injunction order in the Texas litigation, nor does it affect the validity of related Employment Authorization Documents (EADs) granted during the same span of time.” See id.

Secretary Kelly offers these reasons for rescinding the policy:

I have considered a number of factors, including the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities. After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum.

A footnote stresses that this rescinding does not terminate remaining periods of deferred action, and stresses that “(1) deferred action, as an act of prosecutorial discretion, may only be granted on a case-by-case basis, and (2) such a grant may be terminated at any time at the agency’s discretion.” This conclusion cuts against recent arguments that rescinding DACA status is illegal.

With all that is going on in our legal sphere, Texas’s challenge to DAPA has largely receded to the background. Now, the case should come to a close.

This is the way DAPA ends. Not with a bang, but a whimper.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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