DACA/DAPA SUPREME COURT UPDATE- SUPREME COURT DENIES TEXAS’ MOTION FOR EXTENSION

By Attorney Farhad Sethna © 2015

The drama in the DACA/DAPA Executive Action continues. On November 9, 2015, the 5th Circuit Court of Appeals rejected the executive’s appeal to overturn the district courts enjoining the DACA/DAPA executive orders. As was previously reported on this blog, the US District Court in Harlingen, Texas enjoined the DACA/DAPA program from being enacted nationwide in a decision on February 16, 2015.

In this last and final round, the Obama Administration has now appealed the 5th Circuit’s decision to the United States Supreme Court. (In technical terms, a petition to the US Supreme Court to review the decision of a lower court is called a petition for certiorari.)

In what was most certainly a delaying tactic, the State of Texas – which is the lead state plaintiff in this case objecting to the Obama executive action – filed a motion for extension of time to respond to the executive’s application petition for certiorari. A delay would push back the Supreme Court’s time to decide whether to accept the case or not, and delay a decision if the case were to be granted certiorari, which would most certainly reduce the time available to the administration to accept and process DACA applications.

The party that seeks an extension to respond to a petition for certiorari is usually granted such an extension. However, this was not the case here. The Supreme Court denied the State of Texas’ application for an extension. This may have been for a number of reasons:

a. The Supreme Court wishes that this matter be heard promptly because it is so very urgent and time sensitive;

b. The Supreme Court realizes that there is not much that the State of Texas can say in its objection to the writ of certiorari which has not already been said both at the District Court and at the 5th Circuit Court of Appeals; and

c. The Supreme Court does not believe that the extension request was warranted given both parties’ deep resources to litigate this matter.

If the Supreme Court denies the Obama administration’s petition for Certiorari, it would probably end (for now, at least) the hopes and dreams of hundreds of thousands of would be DAPA and DACA recipients.  Of course, the Obama administration can promulgate regulations, but that process can take months and will undoubtedly extend beyond the current administration.

This matter will definitely heat up right after the start of the new year, when the Supreme Court will rule on whether or not to grant a writ of certiorari. At that time, a briefing schedule will be issued and oral argument will be set. Stay tuned to this blog for further developments.

About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.