A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, November 24, 2015

Obama Administration Seeks Supreme Court Review on Deferred Action of Millions

The Obama Administration filed a formal request with the United States Supreme Court on November 20, 2015, asking the nation's highest court to overturn an injunction against its DAPA and expanded DACA programs.

The DAPA and expanded DACA programs, which are part of President Obama's “immigration accountability executive action," have been challenged by the Republicans and conservatives. Twenty six (26) states filed a lawsuit challenging these executive programs.

On February 16, 2015, a federal district court in Texas entered a preliminary nationwide injunction against the implementation of these programs.  The injunction was upheld by a divided Fifth U.S. Circuit Court of Appeals in New Orleans on November 9, 2015.  The administration promptly appealed this decision to the U.S. Supreme Court.  Considering the scope and importance of this case, the Supreme Court will likely grant certiorari to hear the case.

A Matter of Federal Authority
The gravamen of the case is whether the Obama Administration exceeded its executive authority in deciding to grant deferred action to certain categories of foreign nationals present in the U.S.  One such class of people are certain parents of  of U.S. citizens and lawful residents under the DAPA program.

The Administration's rationale is that, with only limited resources and funding, it is not possible to remove the estimated 11 million of unlawful immigrants from the United States.  As the executive branch, it has legal authority to use discretion to prioritize deportation of criminals, recent border crossers, national security threats, and other repeat immigration offenders.

For others who don't pose danger to society and have strong family ties, the administration has plans to defer their deportation, bring them out of the shadow, process and register them in the system, and  also grant them permission to work.

A Fight of Semantics
A large part of the fight is semantics.  For example, the Republican-controlled States argue that the Obama Administration does not have the legal authority to grant deferred action to a class of individuals in the U.S.  Such a benefit should only be granted by Congress, they argued. To be clear, "deferred action" itself is not an immigration benefit that would confer status or rights to an individual as political asylum (granting permanent protection and resident status) or adjustment of status (granting legal resident status) would.  A "deferred action" is simply a temporary suspension of legal action (deportation) against an individual.  It is well-settled that the executive branch agencies such as the DHS and former INS have authority to defer actions again certain individuals or groups of individuals.  For instance, in 2005, DHS granted deferred action to foreign students affected by Hurricane Katrina.

As another example of semantic differences, the Fifth Circuit commented in its decision that deferred action status would award "lawful presence" to the DAPA beneficiaries. True, those who are granted deferred action are no longer considered unlawfully present in the U.S.  Thus, their presence in the U.S. can be described as lawful. But such "lawful presence" is distinguishable from other "legal statuses" such as H-1B temporary worker status, F-1 student status, refugee status, etc., which are legal statuses created by Congress that come with a hose of statutory benefits.  In contrast, deferred action is merely a temporary administrative grace that can be revoked at any moment without notice. Yet, it is apparent from the context that the Fifth Circuit uses the term "lawful presence" as if it is a substantive legal status.  

Permission to Work
The Fifth Circuit agrees that the administration through DHS has the authority to grant deferred action to DAPA beneficiaries.  However, it held that the agency exceeded its authority by granting them employment authorization.  It accepted the argument that the plaintiff States would suffer financially by granting temporary driver's licenses to these individuals.  The Obama administration's response is that employment authorization is only incident to deferred action status, as people in deferred action status need to work to survive.  Withhold employment authorization, they would be forced to work off the books.  Further, the DHS Secretary has independent authority to grant employment authorization to any groups of foreign nationals, regardless of deferred action.

It is Always About Money
Financially, the Obama Administration argues that the States have no legal obligation to provide benefits to individuals in deferred action status.  Texas could choose to stop granting temporary driver's licences to these individuals.  

The Fifth Circuit's counter argument is that it would still cost Texas financially if it has to take legislative actions to eliminate state benefits to DAPA beneficiaries. Why is this important? In order for their case to be valid, the States must prove injury. Otherwise they would have no standing or basis to sue under the Administrative Procedure Act (APA).  

The Administration also argues that, if the States' economic argument was to stand, it would lead to other similar lawsuits. For example, if a state voluntarily decides to adopt the definition of "adjusted gross income" created by the IRS, the state could then sue the federal government for economic loss if it's revenues decreased as a result of a change in the calculation of "adjusted gross income" by IRS. Although such an argument is a bit far-fetched, it works as a reminder to the Supreme Court that its decision could open up a floodgate of lawsuits against federal agency actions.

Notice and Comment
Under the U.S. Constitution, the federal government has very broad power over the administration of immigration laws.  The U.S. Supreme Court will be unlikely to change this long-standing authority in its decision.  On the other hand, the Supreme Court may take issue with the Administration's failure to use the notice-and-comment rulemaking process to implement the new executive action programs. Under the APA, government agencies are usually obligated to publish any proposed rules and regulations in the Federal Register and allow a period of time for the public to provide written feedback and comments.  There is an exception:  the APA exempts from notice-and-comment all “general statements of policy." According to Obama Administration, its executive action programs fall under this exception, and hence the States' lawsuit must be dismissed.  How strong this argument is depends on what constitutes "general statements of policy".  As many Supreme Court decisions hinge on the meaning of a single word or phrase, the outcome of this important case remains unclear.


  1. Yesterday the Supreme Court denied the States' request for an extension to file a response to the Obama Administration's appeal, putting the case on track to be heard by the Supreme Court in the 2015-2016 term, if certiorari is granted.

  2. Supreme Court granted certiorari today. http://myimmigrationlawyer.blogspot.com/2016/01/supreme-court-to-hear-controversial.html