Supreme Court Tie Blocks DREAMers’ Immigration Reform

Background

In November 2014, President Barack Obama announced what became known as the Immigration Accountability Executive Action, which expanded DACA (Deferred Action for Childhood Arrivals) and created a new program referred to as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). DACA, which was first implemented in 2012, allows certain individuals who entered the U.S. before turning 16 and who meet certain requirements related to age, education, presence and criminal history (also known as “DREAMers”) to remain in the U.S. for a renewable 2-year period and receive employment authorization. The DACA expansion program broadened certain eligibility requirements and extended the renewable deferred action period from two years to three years. 

The DAPA program would allow certain undocumented parents of U.S. citizen and Lawful Permanent Resident children to apply for and be granted deferred action. A grant of deferred action under DAPA meant that, for a period of three years, the individual would not be placed on priority for deportation. The granting of DAPA would also allow these parents to be eligible to apply for work authorization in the U.S. 

However, the bold move by the President was not welcome by all.  Within hours of the announcement, Arizona Sheriff Joe Arpaio challenged the President’s plan in a case named Arpaio v. Obama. Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States.  This lawsuit, timely filed just a few days before the government was scheduled to start accepting applications for expanded DACA resulted in an injunction, which the Supreme Court for the Fifth Circuit upheld.  Notwithstanding the challenges, the executive action drew a broad spectrum of supporters—including 15 states and the District of Columbia—who filed amicus (“friends of the court”) briefs in support of the President’s plan.  Ultimately, the case went all the way up to the Supreme Court. On June 23, 2016 a split Supreme Court 4-4 decision blocked President Obama’s executive action.  As a result, the Texas Court’s injunction against DAPA and expanded DACA stands.

Now what?

It is important to note that last Thursday’s Supreme Court decision does not affect the existing DACA. Individuals may continue to request an initial grant of DACA or renewal of DACA under the guidelines established in 2012.

The case may still be brought on appeal.   If an appeal follows, the result will largely depend on who wins the presidential election this November. For example, if the Democratic candidate wins and nominates a fellow left-leaning person to the Supreme Court, this means that the policy will likely go into place.  Alternatively, if the Republican nominee wins, a conservative Justice is unlikely to side with the four liberal judges.   

Those who could potentially benefit from DAPA or expanded DACA should keep abreast of this year’s presidential election because it could still affect Obama’s executive action.

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