ON January 19, 2016, the US Supreme Court agreed to review the legality of President Obama’s executive action, which he announced in November 2014, of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanding the existing Deferred Action for Childhood Arrivals (DACA).
Those programs would have halted the deportation/removal of millions of out of status parents of US citizens and green card holders, granted them work authorization, and increased the number of out of status young people eligible for DACA.
After Obama announced this executive action, 26 states, including Texas, filed a lawsuit challenging the legality of President Obama’s action. In February 2015, a federal judge in Texas issued a preliminary injunction, halting (or shutting down) the program while the case slowly made its way through the court system. The government appealed, but on November 9, 2015, the Fifth Circuit Court of Appeals sided with the federal judge, and upheld the injunction. Obama then sought review (or Certiorari) with the Supreme Court (which is rarely granted), especially since the deadline for accepting cases was quickly approaching.
Fortunately, the Supreme Court required an expedited briefing schedule from both parties (after Texas sought a postponement), and on January 19, 2016, the Supreme Court accepted the case. However, it still remains to be seen if Obama will prevail, which I hope he will.
However, if Obama prevails, things would have to move quickly for those who are potentially eligible. The case\appeal will be heard (or argued) in April 2016. It will be decided in June 2016. A new president will take office in January 2017. If a Democrat is elected, it is likely this program will continue. However, if a Republican is elected president, most candidates (especially Donald Trump) have vowed to discontinue the program. Therefore, if Obama’s executive actions are upheld, USCIS plans to immediately implement DAPA and expanded DACA, which would give people basically a six month time period between a favorable decision by the Supreme Court in June 2016 and a Republican president taking office in January 2017. If people applied for and were granted DAPA or expanded DACA during that brief window, it would be very difficult for a Republican president to take those benefits away, as they would face lawsuits and other challenges.
The basic issues are that, of course, it is Congress that makes the laws, especially when it comes to immigration. However, once Congress passes a law it is the job or duty of the executive branch (president) to “take care” to enforce those laws. Executive action and prosecutorial discretion are ways by which the president decides how and where to enforce the law, and where to commit time and resources.
President Obama decided that although there are over 11 million people in the US who are deportable, the government must prioritize certain of those people, such as felons, terrorists, and those who are a danger to society. Others, such as parents of US citizens and green card holders, who have been in the US for a long time, are otherwise law abiding, and who do not pose a danger, should not be a priority for removal\deportation. Therefore, as part of his job of enforcing the law, he wanted to use resources to go after the really bad guys first. The lawsuit by these 26 states would take away from the executive branch the ability to use discretion on the best way to enforce the law, or would enable states to override the executive branch on enforcement decisions and prioities. I hope the Supreme Court sees it that way, strikes down their lawsuit and the injunction, and upholds Obama’s executive action.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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