A decision by the 5th Circuit Court of Appeals on November 9th means more delays in implementing rules to protect millions of nonimmigrants from deportation. Although the ruling is disappointing and frustrating, there is hope. The argument will now move to the US Supreme Court, where we expect the decision to be reversed.
As we’ve discussed previously, in 2014, President Obama signed an executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. A lawsuit by 25 states has kept the executive order from going into effect. The lower court in Texas held that the states could proceed with their lawsuit and the 5th Circuit has upheld that ruling. Despite this decision and the understandable fear among nonimmigrants, there are positives to this situation:
- The Administration is appealing the case to the Supreme Court and will take aggressive steps to get oral arguments in for this spring session and hopefully get a decision by June 2016. That would mean the rules could be implemented while Obama is still in office.
- There is wide support for the executive order. Although opponents focus on the fact that 25 states are opposed to the rules, there are 15 states, Washington, DC, and 73 Mayors and County Officials actively supporting DAPA/DACA and urging the Court to side with the Obama administration. The populations of the cities backing these initiatives have a larger population of undocumented immigrants than the states that are suing the federal government, which means those most likely to be impacted by DAPA/DACA are in favor of it. The support of these states and cities undercuts opponents’ arguments that the rules are harmful.
- The lower court in Texas and 5th Circuit Court panel was populated by Reagan and Bush appointed judges that were likely to rule against the Administration. Other judges have not agreed with this decision and ruled in favor of the executive order.
- Past rulings by the Supreme Court have supported the power of the President to provide temporary immigration relief and there is no reason for the Court to suddenly break from prior decisions.
- Despite the argument that Obama’s order was unprecedented; the reality is that every president since Eisenhower has used his executive power to provide relief to immigrants. See reports of the Congressional Research Service and the White House Office of General Counsel
Presidential Protection of Immigrants
Although the decision wasn’t good news, it also clears the way for the Supreme Court to end this dispute and protect immigrants from deportation. We will keep you up-to-date on the latest developments. In the meantime, if you are interested in learning more about obtained deferred action status under DAPA or DACA for you or a family member, please contact us.