White House press secretary, Josh Earnest, says the stay will be applied for no later than Monday. The stay is likely in addition to the appeal of the injunction issued by Texas judge, Andrew Hanen.
Applying for a stay of an injunction, which is a request to halt the temporary halting, of the Obama order, is risky. If the stay is not granted, then the failure to get a stay of the Texas injunction could set the tone for the appeal to the Hanen decision as well as to opposition to the lawsuit which gave rise to the decision.
Obstacles to getting the stay are the Conservative nature of the 5th Circuit Court of Appeals, as well as the fact a stay is usually only applicable to maintaining the status quo pending litigation. The Hanen decision maintains the status quo, and a stay of the injunction would actually allow for substantial changes to the status quo. Finally, the movement for immigration reform will gain nothing if the 5th Circuit agrees with the Hanen decision that undocumented immigrants, which conservative media incorrectly categorize as "illegal immigrants", don't deserve protection.
The Hanen decision painted the Obama executive order as a states rights versus federal rights issue. Hanen said the federal government was abdicating it's responsibilities to enforce immigration laws set by Congress and granting immigrants a certain entitlement or right to be in the U.S. for at least a 3 year period. Hanen found the state of Texas had standing to sue because Texas citizens would be forced to pay for the cost of granting driver's licenses to undocumented immigrants who took advantage of the law. Texas citizens would be irreparably harmed because of the cost of granting driver's licenses and because it would be very difficult to recall those licenses once they were granted, or "unscramble the egg". Further, harm to undocumented people was not a concern in an administrative law decision because they were "illegal", said Hanen.
Other states willingly grant licenses to undocumented people, including Washington State, New Mexico and Colorado. The state of Colorado is sitting on over $100,000 in excess immigrant license fees which state Republicans refuse to release for the license program. In short, some states have made significant profits by issuing licenses to undocumented immigrants.
Not applying for the stay is just as risky. If a stay is not issued, few immigrants will be able to apply for the program even if the Hanen decision is eventually overturned before President Obama leaves office. If the DAPA and expanded DACA process continues, those who are approved would have at least a three year respite before having to face immigration consequences. The longer it takes for the process to begin, the less time authorities will have to approve applications.
Neither conservatives nor liberals are talking about what could happen to people who apply for DACA, expanded DACA and DAPA applicants if a conservative candidate wins the White House in the next election cycle. President Obama immediately cancelled multiple executive orders made by the Bush Administration shortly after Obama took office. It is not unrealistic to expect the next president to take the same action, though a conservative candidate would encounter significant wrath from pro-immigration groups. If the immigration orders are rescinded, then immigrants who apply for the order would likely be able to continue to live in the U.S. until their stay of deportation ran out, at which point they would find themselves well identified and in the deportation system unless they could find another basis to make a claim to remain in the U.S.
The best solution for immigrants is comprehensive immigration reform. Senator Michael Bennet, (D-Colo) called for the House to pass the reform bill the senate sent to it and for the nation to look for long term solutions to the immigration problem in the U.S.
Because no other form of relief is available to the majority of the nation's undocumented immigrants, the majority of Latino advocacy groups support the executive order for DAPA and DACA.