Longtime U.S. Residents|Fight Deportation

BROWNSVILLE, Texas (CN) - In a last-ditch effort to avoid deportation, a Mexican couple asked for an injunction to let them stay until the Fifth Circuit rules on a policy that would shield them from removal.

Husband and wife Carlos Regino Valdez, 36, and Aurora Morales Castro, 41, entered the United States legally in September 2003 and overstayed their visas, which is not uncommon.

Studies show 40 percent of the country's estimated 11 million undocumented immigrants entered legally and overstayed their permission to be here.

The couple sued Department of Homeland Security Secretary Jeh Johnson and top immigration officials on Sept. 2 in Federal Court.

They say they should not be deported because they have paid taxes for more than five years and are parents of 5- and 11-year-old U.S. citizens, which qualifies them for Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. President Obama announced the program in late 2014.

DAPA is designed to keep law-abiding families together and prioritize deportation of serious criminals and new illegal arrivals in the face of limited federal resources, a process known as prosecutorial discretion.

The program would have gone live in May but for an injunction issued in February by U.S. District Judge Andrew Hanen in Brownsville.

Hanen sided with a Texas-led coalition of 26 Republican-controlled states that filed suit in December, claiming Obama violated the Constitution by announcing he would not deport undocumented people who have lived in the United States since Jan. 1, 2010, who pass background checks, and who entered as children or are parents of U.S. citizens or lawful permanent residents.

Under DAPA, immigrants would be granted temporary, possibly renewable, lawful presence in the United States. They also could apply for a federal work permit and a driver's license.

The federal government challenged Hanen's injunction before the Fifth Circuit at a July hearing, and a ruling is imminent.

A Fifth Circuit staffer said Tuesday she does not know when the ruling will come, as the judges do not tip their hand.

For Valdez and Morales it can't come fast enough.

"They filed asylum applications fearing persecution upon return to Mexico from the drug cartels and organized corrupt police," their lawsuit states.

They were deemed ineligible for asylum because they waited longer than a year from their arrival in the United States to apply and they didn't explain a change in circumstances in their application.

An immigration judge ordered their removal in September 2013 and the Board of Immigration Appeals denied their appeal in April this year.

The couple say that because they couldn't post bonds of $1,500 each that would have allowed them to voluntarily leave the country, they could be deported any time.

They say they asked the immigration board to reopen their case in May, citing the prosecutorial discretion offered by DAPA.

"The request was denied 'because there is no DAPA program,'" the complaint states.

With nowhere else to turn, the couple claim Hanen's injunction "protects their immediate removal from the United States pending the trial of the civil action of the State of Texas v. United States of America."

The Fifth Circuit could uphold the injunction, as a three-judge circuit panel did in May when the feds asked for an emergency stay. In a 2-1 ruling , the panel found Texas has standing because it will bear the cost of issuing driver's license to qualifying immigrants.

The feds' appeal on the merits is now before the New Orleans-based appellate court, which held a hearing in July.

The Fifth Circuit could remand the case for trial in Hanen's courtroom, decide DAPA is a legal use of prosecutorial discretion, or let Hanen's ruling stand.

Valdez, Castro and an estimated 4.3 million other paperless immigrants who could qualify for DAPA are hoping for the best.

The couple is represented by Lorenzo Tijerina of San Antonio.

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