Deferred Action Program to Receive Supreme Court Review

By Attorneys Ben Loveman & Nancy E. Miller

On Tuesday the U.S. Supreme Court threw a lifeline to the Obama administration’s deferred action programs known as DAPA and expanded DACA (Deferred Action for Parents of U.S. citizens and Deferred Action for Childhood Arrivals, respectively) agreeing to hear the case in this Court term.  Of course, the Court’s decision to hear the case is just a first step and is not an indication that the Court will overrule the lower court decisions or allow DAPA to be implemented. For those hoping that DAPA and expanded DACA will be implemented, we continue to urge that you explore all options available as many other changes to the immigration landscape have opened new pathways to residency and other benefits over the last several years.

For months the DAPA and expanded DACA programs have taken one legal hit after another and looked in peril of fading with the end of the Obama presidency.  However, the United States’ highest court agreed to hear the case and could potentially invalidate an injunction issued in 2015 by a U.S. District Court Judge in Texas which has to date blocked implementation of the program which could benefit millions of families with undocumented family members.

Importantly, the decision by the Supreme Court to hear the case was made in time so that the Court could receive briefs and argument from the parties and issue a ruling by June of 2016 prior to the November elections.  Many Republican candidates have indicated in no uncertain terms that they would immediately rescind the program if elected.  However, November is a long time off and election results are unknown and unknowable at this time.  Further, even assuming a Republican wins the presidency, rescinding benefits from the parents of U.S. citizens could be a costly and unpopular move and could prove easier said than done.

While many immigration group advocates rejoiced in the Supreme Court’s decision to hear the case, they did so cautiously.  The groups and the immigrants they represent are all too aware of the fact that the Supreme Court’s decision to hear the case is a far cry from a victory in this matter and that the Court could still uphold the lower court’s rulings which have to date prevented the programs from being implemented.  In the meantime potential beneficiaries of these programs should seek professional assistance from experienced immigration attorneys to assess what other options might be available and to ensure that if the programs go in to effect that they will be ready.

The programs in question, if implemented, could benefit millions of persons across the United States.  The programs were conceived to be implemented as a form of executive action known as prosecutorial discretion.  Existing regulations enable beneficiaries of prosecutorial discretion who are granted deferred action to apply for and receive employment authorization.  The DAPA and DACA programs aimed to provide deferred action to millions and thereby provide a route to work authorization and a way out of the shadows and away from a living in fear of deportation.

Specifically, DAPA would provide a three-year work authorization and potentially the ability to later apply for travel authorization.  To qualify you must have: (1) a U.S. citizen or permanent resident son or daughter (of any age) as of November 20, 2014; (2) continuous presence in the U.S. since before January 1, 2010; (3) physical presence in the U.S. both on November 20, 2014 and at the time of making the request for DAPA.  Applicants must also not be considered a priority for removal. The DACA program would be expanded by the elimination of the upper age limit of 31 and by bestowing eligibility to applicants arriving in the United States before January 1, 2010 whereas before eligibility required arrival before June 15, 2007.  If the Supreme Court allows the programs to be implemented it is likely that the Obama Administration would roll out the programs as quickly as possible to beat the November election cycle.

The benefits that the DAPA and expanded DACA programs could achieve for the affected people, their families, and for the United States as whole are tremendous. However, there is no indication of which way the Supreme Court will rule and those who are waiting for a decision on the case would be well-served by seeking the advice and assistance of a reputable and experienced immigration attorney to explore options for obtaining benefits at this time under existing laws.  Many new programs and changes to old ones have been implemented in the last several years and may provide a route to residency or employment authorization where none existed before.