Expanded DACA and new DAPA are on hold pending the complex resolution of a lawsuit by 26 states.
No one could have foreseen the dramatic events impacting the conflict over President Obama's November 2014 executive actions on immigration. Frustrated by congressional inaction on immigration reform, the president ordered the Department of Homeland Security or DHS to expand DACA eligibility and lengthen its deferred-action period to three years, as well as implement DAPA or Deferred Action for Parental Accountability, a new, similar program for parents of citizens and legal residents.
DACA grants successful applicants a reprieve from removal action for two years, during which work permits are available and DHS agrees not to take any steps toward deportation.
DACA targets younger undocumented immigrants brought into the U.S. as children who have records free from violent crime and meet certain military or educational requirements.
In February 2015 shortly after the president's announcement, a nationwide injunction issued by the U.S. District Court in Brownsville, Texas, suspended the president's orders when a coalition of 26 states sued the administration to stop his attempt to use executive power to implement the programs. The injunction was entered pending trial, but trial was put on hold during appeal of the order stopping the executive action.
Since our last article on DACA at which time the injunction was on appeal (and in which we explained the Deferred Action for Childhood Arrivals or DACA program in detail), the U.S. Supreme Court in January 2016 agreed to hear the case on its merits and scheduled oral argument for April 18, 2016.
Supreme Court Justice Antonin Scalia's unexpected and sudden death in February 2016 after the case had been accepted creates uncertainly around its ultimate resolution. While President Obama has appointed Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit to replace Justice Scalia on the high court, Republicans in the U.S. Senate have almost uniformly said that they will not consider the appointment during President Obama's tenure.
Without a full court, the Supreme Court could potentially decide the immigration case on a 4-to-4 tie, which would mean the lower court's order stands. Since that would be the U.S. Court of Appeals for the 5th Circuit's order affirming the trial court's temporary injunction suspending the executive action pending trial, it is not entirely clear what this would mean for the case. It is conceivable that the appeals court could send the case back for trial, but the chances of all of this happening before the new election seem low and the election results could make the entire matter moot.
The Supreme Court will consider four issues:
- Whether the states had standing (the legal right) to bring the lawsuit
- Whether the president's actions should have gone through the public notice-and-comment requirements of federal regulations
- Whether the president acted within his legal authority
- Whether the president complied with the constitutional requirement that he take care to faithfully execute the laws
Of course, the justices could resolve the case by deciding one of these issues in a vote that is not a tie. Court watchers and immigration advocates will watch developments with concern and keen interest.
DHS is still accepting applications for the original DACA program as well as renewal requests. Anyone wondering whether he or she or a loved one should file a DACA application (or renewal) should consult an experienced immigration attorney for guidance.
The lawyers at Wilner & O'Reilly, APLC, with offices throughout California and Utah, represent individual, family and business clients across the nation and in other countries in U.S. immigration matters, including DACA applications and renewals