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U.S. Supreme Court Rejects DACA and DAPA Expansion... So What Can Immigrants Do Now?

U.S. Supreme Court Rejects DACA and DAPA Expansion... So What Can Immigrants Do Now?

The U.S. Supreme Court has issued its long awaited decision in United States v. Texas, blocking the Obama Administration's Executive Action program to expand work permits and provisionally halt deportation for long-time undocumented immigrants in the U.S. This proposed program built on the Obama Administration's 2012 deferred action initiative for childhood arivals, which has helped upwards of 800,000 undocumented youths come out of the shadows and obtain work authorization.

Here’s a run-down of the case: In November of 2014, the Obama Administration announced that the DHS would expand deferred action and not pursue deportation of certain undocumented parents of U.S. citizens and green card holders, or undocumented immigrants brought to the United States as children. DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) would be aimed at proetecting parents, Expanded DACA (Deferred Action for Childhood Arrivals) vwould be geared at undocumented immigrants who came to the U.S. as children, but didn’t qualify for original DACA because they were over age 31 in 2012.

How can Obama do this? The President under the Constitution has a lot of power to decide when and how to enforce the laws. This power is known as “prosecutorial discretion.” To illustrate, when a teenager is picked up for underage drinking, the prosecutor and police decide how to handle the case.

  • Do they call the parents to pick up the teenager?
  • Do they charge the teenager with underage drinking and prosecute?
  • Or do they let it go with a warning?

Their decision is a matter of prosecutorial discretion. The police and prosecutor are expected to use their judgment and experience in deciding how best to prosecute the case.

In the immigration context, ICE has the resources to deport 400,000 people per year. There are an estimated 11.3 million unauthorized individuals living in the United States. It is physically impossible to deport them all, and worse, cruel and inhumane. See, SCOTUSBlog. The New York Times says it would cost at least $400 billion to deport everyone. The U.S. doesn't want to waste its resources on this. Instead, the government engages in “prosecutorial discretion” to decide who has to leave. DHS has made its focus clear: go after criminal immigrants and national security threats. The Obama Administration, in its prosecutorial discretion, is deciding not to deport law abiding parents of U.S. citizens and people brought here as children, and to issue them work permits.

In December 2014, a month after Obama announced DAPA and DACA expansion, a group of plaintiffs led by the State of Texas sued the Obama Administration to put a stop to these programs. A federal district court judge in Texas, Andrew Hannen, put a temporary hold on the program to allow the courts to decide whether the President had the power start this program. (You can read the judge’s decision here). The court did not look at whether the program was constitutional. It simply put a hold on the program while it decided that issue.

The Obama Administration appealed the Judge Hannen’s decision to stop the program to the Fifth Circuit. The appeals court agreed with the lower court’s decision to block the program. (You can read the Fifth Circuit’s decision here).

The Obama Administration took the case all the way up to the U.S. Supreme Court. Last week, the Supremes split evenly - four to four - and issued a one sentence: “The judgment is affirmed by an equally divided Court.”

What Does This Decision Mean?

Because the Supreme Court could not come to a decision, Judge Hannen’s decision remains in place. In other words, DAPA and extended DAPA remains blocked. The program has not been declared unconstitutional; there is simply a ban on implementing it while Judge Hannen’s court decides the case.

Now the Obama Administration has to decide whether to fight the injunction outside of the Fifth Circuit. Could the Ninth Circuit in California or the Second Circuit in New York come out differently and allow DAPA and expanded DACA move forward?

In the meantime, the estimated four million parents of U.S. citizen children who are anxiously awaiting DAPA protection won’t be able to come out of the shadows. People who currently have DACA are still eligible for work permits and can apply to travel abroad. Should anyone eligible for DAPA/extended DACA be placed in removal proceedings, they will still apply for other forms of immigration relief.

There’s a lot of fear in the immigrant community as a result of the Supreme Court’s decision. However, DACA remains in place, and Obama’s policy on deportations hasn’t changed.

DACA recipients should continue to maintain their eligibility by staying on the right side of the law, complying with their educational requirements, and renewing DACA status on time. If you've had any law enforcement incidents since acquiring DACA status, it's critical to speak with experienced legal counsel before applying for any immigration benefit.

Undocumented parents should also continue to consult with reputable legal service providers on alternatives to help them get legal status. Just because DAPA has been blocked does not mean no other options are available.

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