Fifth Circuit Rules in Favor of Appeal by Only Parties to Seek Intervention

November 10, 2015

NEW ORLEANS, LA - Late last night, the U.S. Court of Appeals for the Fifth Circuit granted MALDEF's clients the right to intervene in Texas v. United States, a federal lawsuit challenging the constitutionality of the expansion of the existing Deferred Action for Childhood Arrivals (DACA) program, and the creation of Deferred Action for Parents of Americans (DAPA). As the appeals process moves to the U.S. Supreme Court, MALDEF's clients, three mothers from south Texas who intend to apply for DAPA, will participate as parties in the case, with all of the rights of parties, including briefing, argument, and participation in all matters. The Court ruled against the Obama Administration on a 2-1 vote, upholding a lower court's preliminary injunction against implementing expanded DACA and DAPA. The United States has indicated that it will seek review by the Supreme Court.

"While we are pleased that the court recognized the right of potential DAPA applicants to be represented in the case, the panel's refusal to permit the announced actions to move forward is disappointingly outdated," stated Thomas A. Saenz, MALDEF President and General Counsel. "The panel's 2-1 decision fails to recognize the realities of implementing meaningful prosecutorial discretion in the 21st century and stands as an impediment to effective governance in the areas of immigration and other law enforcement."

Earlier this year, a federal judge in Brownsville, Texas denied the mothers' request to join the case as parties, and decided to temporarily halt DAPA and the expansion of DACA to more immigrants who arrived as minors. The judge ordered that the federal government needed to take additional time to carry out a formal rule-making process before DAPA and the DACA expansion could proceed. The process included accepting comments from interested individuals and formally adopting DAPA and expanded DACA as federal rules. The decision did not affect the original DACA of 2012, and did not affect DACA recipients who wanted to renew their applications.

The government appealed that decision to the Fifth Circuit. Arguments were heard in July, and the district court's preliminary injunction was upheld late last night after the panel determined the government's appeal was unlikely to succeed on its merits.

MALDEF Vice President of Litigation, Nina Perales, argued MALDEF's appeal before the Fifth Circuit. She said, "The Fifth Circuit correctly recognized that prospective DAPA recipients have unique interests that entitle them to participate in the case. Unfortunately, the Fifth Circuit also continues to block DAPA from going into effect, making further legal action necessary. Our clients look forward to defending their interests in court as the case moves forward."

Founded in 1968, MALDEF is the nation's leading Latino legal civil rights organization. Often described as the "Latino Legal Voice for Civil Rights in America" MALDEF promotes social change through advocacy, communications, community education, and litigation in the areas of education, employment, immigrant rights, and political access. For more information on MALDEF, please visit:

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