US Supreme Court to Decide on a Pivotal Case in June 2016

On April 18, 2016, the US Supreme Court heard oral arguments in a pivotal case that would affect the status of undocumented immigrants who have applied for or who may qualify for protective status and remain in the United State. Protective status or “deferred action” simply means that an undocumented immigrant would not be in danger of being deported after satisfying certain criteria with the Department of Homeland Security.  In the case named Texas v. United States, a total of 26 states sued the United States Government to stop President Obama’s November 2014 Executive Action that would expand the Deferred Action for Childhood Arrivals (DACA) program and create the Deferred Action for Parents of Americans (DAPA) program.  Before expanding on the legal history and what has brought this pivotal case before the Supreme Court, let’s first look at what are DACA and DAPA.

Deferred Action for Childhood Arrivals

DACA was started by the Obama Administration in 2012.  According to the U.S. Citizenship and Immigration Services (USCIS), on June 15, 2012, the Department of Homeland Security (DHS) announced that certain people who came to the United States as children and met several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They would also be eligible for work authorization. Essentially, DACA was created to allow undocumented immigrants who entered the U.S. before their 16th birthday and before June 2007, by receiving a two-year work permit and exemption from deportation. However, DACA is not a program that provides a path to citizenship.

Deferred Action for Parents of Americans

In November of 2014, President Obama announced an executive action that would allow roughly 4 million undocumented immigrants to stay in the US. Only immigrants who have lived in the U.S., at least since 2010, who have no criminal record and have children who are US citizens or lawful permanent residents are able to apply for a deferred action program that would temporarily protect them from deportation. The plan would also help provide work permits. This plan is called Deferred Action for Parents of Americans (DAPA). This announcement also included plans to expand on DACA. The expansion would eliminate the requirement that applicants be younger than 31 years of age and would lengthen the renewable deferral period for two years.

Fast-forward to February 16, 2015, a federal judge in Texas blocked both programs from being implemented. In essence, these programs have been frozen; however, the original DACA program remains unchanged and applicants who were previously approved can still renew their applications. These applicants will continue to receive protection from deportation and employment authorization.  On November 9, 2015, the 5th Circuit Court of Appeals in New Orleans reaffirmed the Texas federal judge’s decision.  Therefore, the Obama Administration asked the Supreme Court to review the case. Following on January 19, 2016, the Supreme Court agreed to hear the case. The case was heard on April 18, 2016 and a possible decision could be made in June of 2016.

Is It Legal?

On the forefront of this Supreme Court case are two issues: Whether Texas (and the other states) has legal standing (in other words, the state must show that it has suffered a legally recognized injury) and if President Obama has exceeded his executive authority by effectively implementing a form of immigration law under the enforcement arm of the Department of Homeland Security’s prosecutorial discretion. With only eight justices who heard the case, the Court is evenly divided with four liberal and four conservative justices.  A 4-4 tie that could result in no change and would mean the programs would remain blocked and would be sent back to the federal district court in Texas that blocked them in the first place.

There has been much debate centered on these immigration law issues and it has been on the forefront of most, if not all, of the political campaigns of the current presidential candidates.  Despite the outcome of which side will win, our immigration system is outdated and complicated and is in need of repair.

Similar to the federal codes of bankruptcy law, there is no doubt that immigration law is just as difficult and complex.  If you need legal advice on immigration matters, make sure the person helping you is authorized to give legal advice. Only an attorney or an accredited representative working for a Board of Immigration Appeals-recognized organization can give you legal advice.  Anyone wishing to provide the public with immigration services must be authorized by the Department of Justice (DOJ)'s Board of Immigration Appeals (BIA).  The wrong help can hurt. For information on common immigration scams and how to avoid becoming a victim, go to the authorized website of the US Citizenship and Immigration Services or go the the following link:  https://www.uscis.gov/avoid-scams/common-scams.