DHS Secretary Rescinds DAPA; DACA Not Affected for Now

Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders, commonly known as DAPA, did not go too far after it was proposed by President Obama in 2014.  Recently, DHS Secretary Kelly finally put the nail in the coffin.  

On June 15, Secretary Kelly signed an agency memorandum rescinding Obama's November 20, 2014 memorandum, which created the DAPA program.  According to Secretary Kelly, after consulting with the Attorney General, there is no viable way to litigate the program in court.  

Under the DAPA proposal, undocumented parents of U.S. Citizens and green card holders can stay in the U.S. for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks, and pay back income taxes.

The DAPA program never went into effect after it was proposed. Twenty-six (26) states filed a lawsuit to block the implementation of DAPA.  The states argued, among other things, that under DAPA the States would incur additional costs to produce driver's licenses for DAPA beneficiaries. Consequently a Federal District Court judge in Texas granted an order of temporary injunction against the executive of the DAPA program in 2015.  The Obama Administration appealed to the 5th Circuit Court of Appeals, which also sided with the states.  The case went to the U.S. Supreme Court.  In a 4-4 decision, the Supreme Court affirmed the lower court's decision.  What all this means was that the DAPA program could not be implemented. 

Secretary Kelly's rescission of DAPA should not come as a surprise.  The Trump Administration has long been vocal against Obama's immigration policy and executive actions favoring the undocumented.  In fact, rescission was not even necessary here.  By not filing additional pleadings with the court, the program would remain dead.  

The good news is that Secretary Kelly's memo does not affect the sister program of DACA (Deferred Action for Childhood Arrivals).   DACA allows individuals who were brought to the U.S. illegally as children and who have completed their high school education to apply for temporary legal status to live and work in the U.S.  The Frequently Asked Questions of the Rescission memo specifically confirm that the DACA program will not be affected by Secretary Kelly's memo. DACA recipients will continue to be able to apply for their two-year extension and employment authorization documents (EAD).  An estimated 800,000 individuals in the U.S. are eligible for DACA benefits.

However, some observers are not optimistic about the future of DACA given the Trump Administration's tough stance against illegal immigration.  Although President Trump has expressed sympathy for childhood arrivals, and DACA program remains to be in effect for now, there has been reports that some DACA beneficiaries are targeted by ICE.  For example, ICE has started to initiate deportation proceedings against DACA beneficiaries who have violations including DUIs.  Hence, it is important for these beneficiaries to live a responsible life, pay taxes and avoid any violations of law.  

Supreme Court Affirmed Block of Deferred Action for Parents of American Citizens/Residents

Perhaps the recent Supreme Court decision should not come as a big surprise.  After the passing of Justice Antonin Scalia, the Supreme Court was left with only eight (8) Justices, and a 4-4 split decision is likely in cases involving controversial or political issues. In United States vs. Texas, the U.S. Government requested to overturn an injunction against implementation of two immigration programs initiated by the Obama Administration - (1) Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), (2) Expanded Deferred Action Program for Childhood Arrivals (DACA) program.  Since the Supreme Court was equally divided along ideological lines, the Fifth Circuit Court of Appeals' decision blocking these programs was affirmed.

The DAPA and expanded DACA programs have been opposed by conservative groups right from the beginning.  Deferred action programs are nothing new in the context of immigration.  In fact, previous presidents from both the Republican and Democratic parties, including Eisenhower, Reagan, Bush and Obama, have taken similar actions to alleviate various immigration problems.  

Ordinarily the legislative branch of the government should pass laws to handle immigration matters including individuals who are in the U.S. illegally. Unfortunately due to political reasons, the partition Congress has not been able to function properly. In the absence of Congressional acts, it is both reasonable and necessary for the executive branch to take appropriate actions.  Deferred action is one of the inherent powers of the president that can be used to deal with millions of individual unlawfully present in the U.S.  United States vs. Texas tested the limits of this executive power. 

The Supreme Court decision in Texas, however, may not be as significant as the headlines suggest. First of all, the split decision sets no Supreme Court precedent. In fact, the Court only issued a one-line decision without opinions.  Since it was an equally split decision, the lower court's decision will stand automatically. It is also important to note that Supreme Court decision does not affect the Deferred Action for Childhood Arrival (DACA) of 2012.  Individuals who were found eligible under the 2012 DACA program may continue to extend their deferred action status under the existing regulations.  

It is unfortunate that the Supreme Court was not able to take this opportunity to settle the challenge to deferred action and set legal guidance for future programs.  However, there will be other opportunities for precedent decisions by the Supreme Court, as federal courts continue to hear and decide cases involving similar immigrant issues.   One thing that we can rely on is that America's immigration laws and policies never stay the same for too long.  Political changes (Ex. presidential elections), economic climate, shifts in cultural paradigms, etc., will keep on changing that nation's policies and attitudes towards immigration.  

Supreme Court to hear Controversial Deferred Action Case

Today, the U.S. Supreme Court announced that it will hear the controversial case of Texas vs. United States concerning the Government's plan to grant deferred action status to millions of long-time illegal immigrants in the U.S. who are parents of U.S. citizens and residents.  

In November, the Fifth Circuit sided with the lower Federal District Court and upheld the injunction against the Obama Administration to implement its new DAPA (parents of U.S. citizens and legal residents) and expanded DACA (childhood arrivals) programs.  These programs are part of the Administration's executive plan to reform the U.S. immigration policy. 

In granting certiorari, the Supreme Court also asked the parties to brief on the issue of whether the deferred action plan violates the "Taking Clause" of the United States Constitution.  The Taking Clause of the Fifth Amendment provides that private property should not be taken for public use, without just compensation.

The timing of this case is particularly interesting in light of the recent heated debates on immigration among the presidential candidates.  The case is expected to be decided in June, but the future of the these deferred action programs will ultimately depend on the result of the upcoming presidential election.  

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.

USCIS To Conduct Home Visits to Recall DACA EADs

Texas Federal Judge Andrew Hanen imposed a 07/17/2015 deadline for USCIS to recall a few thousand incorrectly issued 3-year Employment Authorization Documents (EADs) from DACA beneficiaries, in relation to his temporary injunction against USCIS execution of the DAPA Program. 

These beneficiaries should have been issued 2-year EAD cards instead.  Some applicant had already returned their 3-year EAD cards to USCIS,  but there are still some outstanding cards out there.   USCIS has informed the immigrant communities that it will be conducting home visits to retrieve these EADs. USCIS will at first conduct a “pilot” program in Chicago, Los Angeles, Houston, Dallas, and potentially San Francisco, to be expanded to other areas with large percentages of DACA beneficiaries.  A receipt will be issued to DACA beneficiaries who return their EADs. DACA beneficiaries may also return their EAD cards to any USCIS Field Offices.  

It is very important for DACA beneficiaries to return their incorrectly issued 3-year EAD cards as soon as possible, if they haven't done so.  Otherwise, they could lose eligibility to DACA and other immigration benefits. 

DAPA delay continues after Appellate Court denied Obama Administration's request to lift injunction

The 5th Circuit Court of Appeals rejected the U.S. Government's request for a stay of an injunction

imposed on it's Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).  The DAPA program was announced by President Obama in last November to allow certain undocumented residents of the United States to temporarily stay and work legally for two years if they are parents of U.S. lawful residents or citizens. However, in response to a lawsuit filed by twenty-six (26) states challenging the program, a Federal District Court judge in Texas issued an Order of Temporary Injunction against the execution of the DAPA program on February 16, 2015.  The Obama Administration appealed this injunction to the 5th Circuit.  Today, the 5th Circuit U.S. Court of Appeals voted, 2-1, to deny a emergency stay of the injunction.  As such, the future of the DAPA program remains uncertain.