New Jersey Naturalization
Lawyer

The U.S. Supreme Court now has eight members, raising the possibility of a 4-to-4 decision.

Just when the U.S. Supreme Court was finally going to determine the legality of President Obama's executive action on DAPA and expanded DACA, the death of one of its justices has ignited debate over what that means for the case. Unfortunately for many undocumented immigrants and their advocates who have been holding their collective breaths hoping for relief from the fear of deportation, the future of the executive actions have become even more uncertain.

Original DACA

In June 2012, the U.S. Department of Homeland Security launched a new program called Consideration of Deferred Action for Childhood Arrivals or DACA that grants two years of deferred action from removal plus work authorization, subject to renewal, to eligible younger undocumented immigrants who arrived here as children, meet certain educational or military requirements and have lived free of serious crime.

Deferred action means the government will not take action to remove (deport) the person for the period of time granted, but does not mean the person has lawful status.

Despite the lawsuit, the original DACA program is still accepting applications and renewals. Consulting an attorney can be a good idea during the application process because the application is expensive and complicated, extensive documentation must be gathered and submitted and little opportunity for review of a denied application exists.

Challenging for some is the requirement that an applicant not have a felony, "significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety." DACA applicants with some criminal history should speak to a lawyer about whether grounds exist for meeting this requirement, as the situation may be more complex - and sometimes more hopeful - than expected.

DAPA and expanded DACA

In November 2014, President Obama responded to congressional inaction on immigration by taking executive action that could offer relief to millions of undocumented immigrants. He ordered expansion of DACA eligibility and lengthening of the period of deferred action to three years. He also announced a new, similar program for undocumented parents of citizens or lawful permanent residents: Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA.

Before his orders could be carried out, 26 states filed a lawsuit to stop the executive actions in the U.S. District Court in Brownsville, Texas, which issued a nationwide temporary injunction ordering the government not to implement the programs pending resolution of the suit. The injunction was upheld by the U.S. Court of Appeals for the 5th Circuit and in January 2016 the U.S. Supreme Court agreed to hear the case and decide four issues:

  • Whether the states had standing to bring the suit
  • Whether the president had authority to take the action
  • Whether the president should have followed the requirements for enacting a regulation that include public notice and time for comment
  • Whether the president met the constitutional requirement that he take care to faithfully execute the law

Most court watchers speculated that the decision would be issued this summer, but on February 13, Justice Antonin Scalia died unexpectedly. The president and the Senate are deadlocked over when a new justice should be appointed. It is unclear whether the case will be delayed, but if the decision were tied 4-to-4, the lower court injunction would stand, meaning the case could potentially go to trial in the District Court. Yet, the election result could make the entire matter moot.

The attorneys at the law firm of Thomas E. Moseley in Newark, New Jersey, and New York City represent clients in immigration matters, including defense in removal and deportation matters.