U.S. v. Texas and The SCOTUS Split Decision
President Barack Obama is no stranger to executive actions that result in contention, especially when it comes to his immigration policies. Two such examples are his initiatives expanding Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). According to the American Immigration Lawyer's Association (AILA), "[t]he DAPA and DACA initiatives allow law enforcement officials to focus their attention on public safety risks, while allowing noncitizens with significant family and community ties to the United States to obtain temporary, renewable deferrals of deportation." Questions about the legality of these initiatives have resulted in the lawsuit U.S. v. Texas.
DAPADAPA stands for Deferred Action for Parents of Americans and Lawful Permanent Residents. It was first introduced in November of 2014 as part of President Obama's attempt at overhauling the current immigration system, which both the right and left agree is antiquated and in need of significant reform. The AILA states that "DAPA is an exercise of prosecutorial discretion that provides temporary relief from deportation (deferred action) and eligibility for work authorization to undocumented parents of U.S. Citizens or lawful permanent residents (LPRs)." These grants would last for three years.
In order to be eligible for deferred action under DAPA, individuals must;
1) Have a U.S. citizen or LPR son or daughter as of November 20, 2014;
2) Have continuously resided in the U.S. since January 1, 2010;
3) Have been present in the U.S. on November 20, 2014 AND at the time of applying;
4) Have no lawful immigration status on November 20, 2014;
5) Are not an enforcement priority. In other words, individuals with a wide range of criminal convictions (including some misdemeanors), anyone suspected of being involved with gang involvement or terrorism, recent unlawful entrants, and certain other immigration law violators are ineligible; and
6) Pass a background check.
DACADACA stands for Deferred Action for Childhood Arrivals. It is similar to DAPA in that it is an exercise of prosecutorial discretion that provides temporary relief from deportation (deferred action) and work authorization to certain individuals. However, DACA is specifically created for young people brought to the United States as children--often called "DREAMers."
The Department of Homeland Security (DHS) first launched the initiative in 2012, and since that time it has helped over 700,000 eligible young adults move into mainstream life in the United States, thereby improving their social and economic well-being.
To qualify under the original initiative, individuals must demonstrate that they:
1) Were under the age of 31 on June 15, 2012;
2) Arrived in the United States before turning 16;
3) Continuously resided in the United States from June 15, 2007 to the present;
4) Were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from U.S. Citizenship and Immigration Services (USCIS);
5) Entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012;
6) Are either in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces; and
7) Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors occurring on different dates and arising out of different acts, omissions, or schemes of misconduct, and do not otherwise pose a threat to national security or public safety.
Determinations are made on a case-by-case basis and are within the discretion of DHS. In some cases, individuals who met all the requirements listed above have been denied DACA because, in DHS's opinion, they did not warrant a favorable exercise of discretion.
EXPANDED DACAOn November 20, 2014, the President announced expanded DACA, which modified the original DACA initiative by eliminating the age ceiling and making individuals who began residing here on or before January 1, 2010 eligible. Moreover, the Administration announced that DACA grants and accompanying employment authorization will last three years instead of two.
PROSECUTORIAL DISCRETION: WHAT IS IT AND WHY DOES IT MATTER?"Prosecutorial discretion" is the authority of a law enforcement agency or officer charged with enforcing a law to decide whether--and to what degree--to enforce the law in a particular case. In immigration cases, prosecutorial discretion often arises around the question of whether someone should be placed in removal proceedings or whether to execute a removal order.
DEFERRED ACTION AND PROSECUTORIAL DISCRETIONFor years, the immigration agencies have employed a form of prosecutorial discretion called "deferred action." Deferred action is the agency's decision not to pursue enforcement against a person for a specific period of time. A grant of deferred action does not confer lawful immigration status or alter the person's existing immigration status, and deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status. Nonetheless, an individual with deferred action may apply for work authorization, i.e., an Employment Authorization Document (EAD).
WHO WILL PAY FOR THESE INITIATIVES?The deferred action initiatives will be financed by a user fee of $465 per application. This is similar to the DACA initiative that the President announced in 2012. DHS has stated that "there will be no fee waivers and, like DACA, very limited fee exemptions."
HOW MANY PEOPLE WILL THIS AFFECT?A recent analysis from the Migration Policy Institute estimates that 3.7 million undocumented immigrants could qualify for protection from removal under the two initiatives.
U.S. V. TEXASSoon after the President announced expanded DACA and DAPA, Texas and 25 other states filed a lawsuit in federal district court in the Southern District of Texas to try to block the implementation of expanded DAPA and DACA. The 26 states claim that expanded DACA and DAPA violate federal laws and the Constitution. Specifically, they claim that expanded DACA and DAPA violate the "Take Care Clause" of the Constitution, which states that the President must "take Care that the laws be faithfully executed." They also claim that expanded DACA and DAPA violate the Administrative Procedure Act (APA) because these initiatives are arbitrary and capricious or otherwise not in accordance with the immigration laws and that the federal government did not comply with certain technical procedural requirements under the APA, including notice-and-comment rulemaking, before it announced the expanded DACA and DAPA initiatives.
SO WHAT HAPPENED YESTERDAY (JUNE 23, 2016)?The Court affirmed the Fifth Circuit decision in U.S. v.Texas in a 4-4 split decision, upholding a preliminary injunction initiated in district court. This means that the Supreme Court agrees with the previous court rulings and does not allow expanded DACA or DAPA to move forward. With the preliminary injunction still in place, the case will go back to the district court. The federal government will not be permitted to implement expanded DACA or DAPA while the case continues before the district court. However, the decision of the district court could eventually be appealed, meaning the case could go to the Fifth Circuit and the Supreme Court a second time.
*THE INFORMATION CONTAINED IN THIS ARTICLE WAS OBTAINED FROM VARIOUS ARTICLES, TALKING POINTS, QUOTES, AND PRESS RELEASES BY THE AILA. IT IS NOT TO BE CONSTRUED AS ORIGINAL IDEAS BY THIS AUTHOR, RATHER AS A GENERAL OVERVIEW FOR INDIVIDUALS WHO DO NOT HAVE ACCESS TO AILA MATERIALS.