The Department of Justice has asked the U.S. Supreme Court to review an appeals court ruling that has maintained the temporary hold on two of President Obama’s executive actions, which would expand the Deferred Action for Childhood Arrivals (DACA) program and create a similar program for some undocumented parents of U.S. citizens and lawful permanent residents.

In its formal request for review, or petition for writ of certiorari, the Justice Department argued that the Supreme Court should hear the case because it poses a question of national importance and the appeals court erred in finding that the Department of Homeland Security lacked substantive authority to adopt the executive actions. The government argues that Congress has given DHS broad discretion to establish policies to defer deportation of certain individuals and that the states do not have standing to sue because the executive actions at issue are nonbinding, revocable, discretionary actions not subject to judicial review.

The department seeks review of the Nov. 9 decision by the 5th U.S. Circuit Court of Appeals affirming a temporary injunction on the executive actions. DHS issued memoranda to implement these executive actions in November 2014, but the two programs that would defer deportation for approximately 5 million undocumented immigrants were not allowed to go into effect due to the litigation.

The lawsuit was brought in December 2014 by 26 states, which claimed they would have to bear the costs if undocumented immigrants were allowed to be lawfully present in the U.S. and obtain employment authorization.

BAL Analysis: The filing does not ensure that the Supreme Court will hear the case. If the Court decides to take up the case this term, it will issue a decision before the term ends in June 2016. The expanded DACA and proposed DAPA programs remain on hold in the meantime.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact