The Obama administration announced a program in late 2014 that would allow many undocumented immigrants to remain in the country if they are parents of U.S. citizens or lawful permanent residents (LPRs). The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program has never taken effect, due to a lawsuit by multiple state governors challenging the White House’s authority to establish such a program. In late June 2016, DAPA suffered a major setback in the Supreme Court, from which it might not recover. The court’s eight justices split evenly on the case, meaning that the lower court decisions blocking the program are affirmed by default. United States v. Texas, 579 U.S. ___ (2016).
The Deferred Action for Childhood Arrivals (DACA) program, first implemented by the White House in 2012, allows undocumented immigrants who entered the U.S. as children, and who meet certain other criteria, to remain in the U.S. and obtain work authorization for two years, subject to renewals by the administration. Contrary to much of the opposing rhetoric, DACA does not confer lawful immigrant status on its beneficiaries. Instead, it is an agreement by the Department of Homeland Security (DHS) to defer the enforcement of immigration laws for a specified period of time. Work authorization is certainly a benefit, but it is one that is within the Executive Branch’s authority to grant. DACA is not comparable to the status conferred by a visa or green card.
DAPA would have extended similar deferrals to undocumented parents of citizens and LPRs who meet the program criteria. About 3.6 million people, out of an estimated 11 million total undocumented immigrants living in the U.S., might have been eligible for DAPA. The majority of people believed to be DAPA-eligible have lived in the U.S. for at least 10 years.
The White House announced DAPA in November 2014. That December, the governors of 26 states filed suit against the federal government, seeking to block the implementation of the program. A federal judge issued an injunction delaying the implementation of the program in 2015, giving it nationwide applicability. Texas v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). The judge’s lengthy order focused on a memorandum issued by the Secretary of DHS, and it was based largely on procedural grounds. The court found that the plaintiffs had established “that the Defendants have clearly legislated a substantive rule without complying with the procedural requirements under the Administration [sic] Procedure Act.” Id. at 677.
The Fifth Circuit Court of Appeals denied the federal government’s motion to stay the injunction, 787 F.3d 733 (5th Cir. 2015), and then affirmed the injunction itself, 809 F.3d 134 (5th Cir. 2015). The questions presented in the federal government’s appeal to the Supreme Court involved various requirements under the Administrative Procedures Act. The court heard oral arguments in April 2016, after the death of Justice Scalia in February left the court with only eight justices. The justices split 4-4, resulting in the summary affirmation of the Fifth Circuit’s ruling. Whether the injunction continues to apply nationwide, however, remains to be seen.
Samuel C. Berger is a family immigration attorney who practices in New York City and Northern New Jersey. We represent immigrants, family members who want to petition on behalf of an immigrant, and employers of prospective immigrants. To schedule a confidential consultation with an experienced and knowledgeable immigration advocate, contact us today online, at (201) 587-1500, or at (212) 380-8117.
More Blog Posts:
Federal Appellate Court Affirms Injunction Against the White House’s 2014 Executive Actions on Immigration, New York & New Jersey Immigration Lawyer Blog, January 14, 2016
Travel Outside the U.S. for DACA Recipients Remains Tricky, New York & New Jersey Immigration Lawyer Blog, May 13, 2015
Federal Government Allows Extension of DACA Status, Amid Efforts to Roll Back the Program, New York & New Jersey Immigration Lawyer Blog, August 6, 2014