Texas’ Block on DAPA and Extended DACA continues after Supreme Court Tie
President Obama’s Deferred Action for Parents of Americans (“DAPA”) program with the potential to protect more than 4 million parents of US citizen and lawful permanent resident (LPR) children from deportation has been blocked from implementation by federal courts in Texas. On Thursday, June 23, by a vote of 4-4, in a one-sentence decision, the Supreme Court of the United States affirmed the lower courts’ decision to enjoin the DAPA program as well as a proposed expansion of the Deferred Action for Childhood Arrivals (“DACA”) Program. The decision does not represent a victory on the legal merits for challengers of the law, but the practical result is to halt implementation of the program. Thus, the Administration’s attempt to provide some form of respite from deportation and to grant employment authorization documents (EADs) to these individuals is shut down as the lower court’s injunction will remain in place.
What does this mean for the millions of undocumented parents of US citizen and LPR children in the United States?
According to Administration policy, certain categories of individuals are not considered enforcement priorities for the Department of Homeland Security. This includes individuals who have clean criminal records with some minor exceptions and who have not been ordered deported by an Immigration Judge after January 1, 2014. It also includes individuals who have been living in the United States since before January 1, 2014. In theory, such individuals will not be deported if they are encountered by Immigration and Customs Enforcement (“ICE”). However, it is important to remember that individuals who are out of status remain subject to the immigration laws of the United States. The written guidance reflecting the Administration’s policy is not a form of relief from deportation but rather a discretionary tool for ICE to use in determining whether to move forward with deportation proceedings against an individual. The policy does not provide any guaranteed protection against removal.
What does this mean for the thousands of noncitizens in the United States who have already been granted DACA?
The Supreme Court’s decision does not affect the thousands of individuals in the United States who have received protection from deportation and an employment authorization document after having been granted Deferred Action for Childhood Arrivals (DACA). Assuming they remain eligible, these young people can continue to apply for an initial grant and for extensions of DACA as long as the program continues. However, the Administration’s proposed expansion of DACA will not go into effect.
What will happen next?
The case will be returned to the lower courts which will hear the merits of the claim. However, the matter is unlikely to be resolved on the merits in the near future. The upcoming presidential election will play a crucial role in determining future policies towards undocumented immigrants. If elected, presumptive Democratic nominee Hillary Clinton has vowed to defend President Obama’s policies and to fight for comprehensive immigration reform in Congress. Presumptive Republican nominee Donald Trump has vowed to deport all undocumented immigrants currently living in the United States.
What should undocumented parents of US citizen and lawful permanent resident children do in light of this decision?
Each person’s case is different. Some undocumented individuals may have qualifying family members through whom they can petition for an immigrant visa and a waiver in certain instances. They may also be eligible for other forms of relief under the immigration laws. These parents should be familiar with the DHS enforcement priorities to determine their risk for deportation. They may want to speak with an immigration attorney to better understand the enforcement priorities and whether they are eligible for any form of immigration relief under the current law.