DAPA hits the Supreme Court: an immigration lawyer’s analysis

For immigration lawyers and millions of people in the U.S. hoping and dreaming for DAPA and other immigration options, this summer’s expected Supreme Court decision will be profoundly life-changing.

Background on the DAPA case

In 2013, the Senate passed S.744, a bipartisan Comprehensive Immigration Reform bill that would have taken steps toward fixing a number of problems with the current immigration system. But Republicans in the House of Representatives killed this bill.

In response, on November 20, 2014, President Obama issued his Immigration Accountability Executive Action. The goal of this was to provide common sense fixes to certain problems and inspire Congress to take more sweeping action.

This executive action included an expansion of the previously implemented Deferred Action for Childhood Arrivals (DACA) program, and the announcement of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

These are both deferred action programs that provide eligible individuals with temporary administrative relief from deportation and permission to work.

Expanded DACA

The DACA expansion includes: the elimination of the upper age limit (meaning individuals born before June 15, 1981 who are otherwise eligible, could now apply); the change of entry date from June 15, 2007 to January 1, 2010; and an extended validity period. DACA grants will be for three years, instead of two.

DAPA

DAPA, the new program, is targeted at immigrant parents of U.S. citizens and lawful permanent residents and similarly provides a 3-year period of relief from deportation along with permission to work.

To be eligible for DACA, applicants must:

  • Have lived continuously in the U.S. since January 1, 2010;
  • Have been present in the U.S. on November 20, 2014;
  • As of November 20, 2014, had a son or daughter who is a U.S. citizen or lawful permanent resident;
  • Not have had lawful immigration status on November 20, 2014 or at the time of application for DAPA; and
  • Not have been convicted of certain crimes.

According to the Brookings Institute, 4 millions people may be eligible for DAPA.

Republican launch partisan lawsuit against DAPA

Republicans in Texas and 25 other states brought a challenge to this executive order in federal court, specifically seeking to block the expansion of DACA and the implementation of DAPA. The Republican-led states argued that the President’s exercise of discretion was an unconstitutional overreach.

Then, on February 13, 2016, Supreme Court Justice Antonin Scalia passed away unexpectedly. With his passing, there are now only 8 justices on the Supreme Court. And Republicans in the Senate have refused to hold hearings and vote on any Obama nominee to replace Scalia.

Possible outcomes of DAPA case

A loss for immigrants

The worst outcome would be a 5-3 decision striking DAPA as an an unconstitutional use of executive authority. Such a decision would have implications far beyond the death of DAPA.

A loss in this case could prevent or limit future presidents from taking action on immigration matters. This outcome would mean that, having blocked legislative action, Republicans would have killed executive action as well. Immigration gridlock would continue for the foreseeable future.

A tied decision would be a loss

With 8 sitting justices, a tie is a theoretical possibility. When a Supreme Court case is decided with a tie, the lower court’s decision stands, but no precedent is set.

In the DAPA case, a tie would reaffirm the conservative Fifth Circuit’s decision, allowing a nationwide injunction on DAPA, but the expansion of DACA to remain in place.

A win for immigrants

The Supreme Court could affirm the legal validity of DAPA. If so, millions of people could begin filing DAPA application.

This is the outcome that the American Immigration Council predicts and the one that I’m hoping for. In this view, the Republican-led states lack standing and the Executive branch has wide discretion to implement and enforce immigration laws. This would also allow future presidents to take executive action on immigration and other contexts.

Immigration Lawyer ready to help with DAPA

Our office will be keeping a close eye on what happens with DAPA. We are hopeful for a positive result, and as soon as we have more information, we will provide it to you on our website and through our newsletter.

Should the Supreme Court uphold executive action on immigration, we will be here to help you prepare and file expanded DACA, as well as DAPA, applications. Come see us to discuss your immigration options. Meanwhile, let’s keep our fingers crossed!