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27Jun, 16

On a writ of certiorari to the United States Court of Appeals for the Fifth Circuit, an equally divided U.S. Supreme Court, on June 23, 2016, affirmed the Fifth Circuit’s decision [in a one-sentence opinion on the 4-4 split], effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  Though the decision was just 9 words long, it has vast consequences as it dealt a severe blow to President Obama’s initiative to bring in Immigration reforms to help millions of people trying to find shade under the umbrellas of DACA and DAPA.

To give a little bit of background on the developments prior to the matter reached U.S. Supreme Court; on November 9, 2015, the Fifth Circuit Court of Appeals had affirmed the order of a Texas federal district court that had blocked the implementation of DAPA and expanded DACA. The court in Texas issued its order earlier, after President Obama announced the DAPA and expanded DACA initiatives last November. There were three judges on the Fifth Circuit panel that affirmed the Texas court’s order. Two of the judges voted to affirm the order, and one was in favor of overturning it. The two judges who formed the majority in this decision, Judges Smith and Elrod, had voted earlier this year to deny the federal government’s request for an emergency stay of the Texas court’s order. The one judge who was not in favor of affirming the Texas court’s order—Judge King—wrote a strong dissent that expands on the arguments made by a judge—Judge Higginson—who, earlier this year, dissented when the Fifth Circuit denied the federal government’s request for the emergency stay. Judge King’s dissent explains why the order blocking the president’s immigration initiatives is legally unsound and should be lifted. The federal government, by way of writ of certiorari, approached the U.S. Supreme Court to review the case. The decision of U.S. Supreme Court puts two initiatives on hold affirming that that the Texas court’s order that blocks DAPA and expanded DACA from being implemented will remain in place.

What is DAPA and who could use this benefit:

DAPA is an exercise of prosecutorial discretion that provides temporary relief from deportation (deferred action) and eligibility for work authorization to undocumented parents of U.S. citizens or lawful permanent residents (LPRs). The President Obama had first announced the initiative on November 20, 2014 as part of the series of administrative reforms on immigration. The proviso stated that DAPA grant would last for three years. In order to be eligible for DAPA, one must; be a U.S. citizen or LPR son or daughter as of November 20, 2014; have continuously resided in the United States since at least January 1, 2010; be physically present in the United States on November 20, 2014 and at the time of applying; have no lawful immigration status on November 20, 2014; not be an enforcement priority that includes individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators; present no other factors that would render a grant of deferred action inappropriate; and pass a background check.

What is DACA and who could use this benefit:

Deferred Action for Childhood Arrivals, or DACA, is an exercise of prosecutorial discretion that provides temporary relief from deportation (deferred action) and work authorization to certain young people brought to the United States as children. The Department of Homeland Security (DHS) first launched the initiative in 2012, and since that time it has helped over 700,000 eligible young adults move into mainstream life in the United States, thereby improving their social and economic well-being. To qualify under the original initiative, individuals must demonstrate that they: were under the age of 31 on June 15, 2012; arrived in the United States before turning 16; continuously resided in the United States from June 15, 2007 to the present; were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from U.S. Citizenship and Immigration Services (USCIS); entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012; are either in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces; and have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors occurring on different dates and arising out of different acts, omissions, or schemes of misconduct, and do not otherwise pose a threat to national security or public safety.

What next?

The government can request rehearing from the Supreme Court, but otherwise the case will now go back to the district court for further proceedings. Even though the Supreme Court has heard arguments, the case hasn’t actually been resolved. Technically, the only rulings have been preliminary ones — the underlying ruling on President Obma’s executive action implementing DACA and DAPA itself hasn’t even been issued by the lowest court judge. It could also happen that in the interim, an action to defend the president’s executive actions may be brought in other states thereby creating a possible split between appellate courts and if they prevail would lead to holding president’s executive action being ruled constitutional in parts of the US and unconstitutional in other parts. Action can be brought in other states because other circuit courts have the jurisdiction to entertain the action defending president’s executive actions. If that happens, it would create serious judicial chaos.

Irrespective of this, the ruling is a significant blow to Obama administration and hopes of millions of people looking for a relief under DACA and DAPA, because it freezes President’s efforts on behalf of immigrants until at least after the elections in November this year. What this would mean is that next President will have to again seek a congressional compromise to overhaul the immigration reforms that leaves several immigration activists completely frustrated. Judge Andrew Henen of the U.S. District Court in Texas who had issued injunction preventing Obama administration to move ahead with implementation of DACA and DAPA had based his injunction on Obama administration’s failure to first give notice and seek public comments before implementing two programs because DAPA and expanded DACA determinations are non-discretionary. This met satisfaction of Fifth Circuit leading to equally split decision from nation’s highest court. This may well be an indication for next President of United States how to pave his way ahead in the event the initiative to overhaul nation’s reform is taken again.

Further, whether this ruling of nation’s highest court can be revived in the next presidency will depend as much on who controls the Senate and the White House. In order to break the tie, ninth justice would be needed and if a ninth justice cannot be confirmed next year, it is unlikely that any current member of the Court will change their mind about this case. This means that DAPA and expanded DACA are almost certainly dead for the duration of the Obama presidency.

The two initiatives of DACA and DAPA carry very high stakes as they not only provide temporary relief from deportation to as many as 3.7 million people, but also have the potential to positively impact families, communities, and our economy. The reality is that the only way to update our immigration system once and for all is for Congress to pass long-overdue immigration reform legislation. For this to happen, the Congressional representatives need to be really lobbied well to include representatives from communities all across United States that do understand the pain and sufferings of millions of affected families and do understand that United States is a unique and successful nation whose success is deeply engrained and embedded in the immigrants it has embraced for the last 400 years. The immigrants have come and looked up to embrace United States and its set of ideals such as Democracy, Rights, Liberty, Opportunity, and Equality as United States has always carried the belief that life should be better, richer and fuller for everyone, with opportunity for each according to ability or achievement regardless of social class or circumstances of birth. This is the sacred heritage of this great nation that is also the eternal will of God. May be-this sacred heritage and will of God will prevail in the times to come.

June 27, 2016

Vijay Bhagwati, Esq.

(President and Managing Attorney-Bhagwati and Associates, PLLC.)

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