Update on Texas v. US litigation (DAPA/expanded DACA) from the National Immigration Law Center:

Some of you may be wondering about the latest legal happenings in Texas v. United States. Here’s a brief rundown:

There are three legal issues to watch, and each has its own trajectory. They are:

Emergency Stay

The Department of Justice (DOJ) has asked the US Court of Appeals for the 5th Circuit to allow President Obama’s DAPA and DACA expansion initiatives to take effect while the court considers the formal appeal of the injunction. There is a high legal bar for granting an emergency stay, but if it is granted, the government could continue to prepare for DACA expansion and DAPA implementation, and, if ready, begin to accept applications.

–        Key dates:

o   Texas and other suing states will file a response to DOJ’s request by March 23

o   The Department of Justice has asked for the courts to decide whether they will grant  the stay by March 27

o   We don’t know when the court will issue a decision, but it is unlikely to occur before March 23

Appeal of Preliminary Injunction

The Department of Justice has also appealed the district court decision to block implementation of DAPA and Expanded DACA.  They have requested that the Court of Appeals expedite this appeal process. If the court sides with the Department of Justice on its appeal, the DAPA and Expanded DACA initiatives would be allowed to take effect.

–        Key dates:

o   The Department of Justice will file its brief on March 30

o   Texas and the states will file an opposing brief 33 days after March 30

o   The earliest the 5th circuit will hear oral argument on this case would be in June, and a decision on the appeal could come days, weeks, or months after the oral argument.


Remember that both the Stay Request and the Appeal have to do only with the preliminary injunction, or the district court’s decision to block these initiatives while Texas v. United States winds its way through the courts. The case itself remains at the federal district level. Today, there is a hearing at the federal district court to determine whether the states should now be permitted early “discovery” – that is, an early opportunity to seek information from the government to help inform their case.  


Hearing regarding claim of misconduct and request for Discovery

As we know, the immigration executive action allowed people who seek DACA (including both the original DACA program and Expanded DACA) or DAPA to apply for three year work permits. Before the injunction was issued by the federal court, more than 100,000 people who applied under the original DACA program (which is not challenged in this lawsuit) received three year work authorization cards. Today’s hearing is to determine whether the federal government somehow misled the court by issuing these work permits (note that the federal government stopped issuing three year work permits after the Feb. 16 injunction issued). This is something the states have alleged.

Here are a couple things the court could order the government to provide to plaintiffs (though discovery):

–        Permit plaintiffs to conduct depositions, or on the record questioning, of high and low level officials

–        Require the government to respond to written questions and request for documents from the states