This morning, the U.S. Supreme Court released three decisions, including its holding in U.S. v. Texas – the lawsuit challenging the implementation of President Obama’s Executive Actions for Immigration Reform, which were announced in November 2014. When Justice Scalia passed away earlier this year, his death left the Supreme Court with only eight Justices instead of its usual nine. This means that until Scalia’s vacancy is filled, the Court may issue opinions in which four justices rule one way, and the other four another. This is what happened this morning when the Supreme Court issued its holding in the Texas case. The vote was 4-4, and this “tie” situation means that the previous decision issued by the Fifth Circuit Court of Appeals on November 9, 2015, which held that a preliminary injunction stopping the implementation of DAPA (Deferred Action or Parental Accountability) and broadening the scope of the Deferred Action for Childhood Arrivals (DACA) program, would remain in place. In short, people who would otherwise be eligible for protection under DAPA will not be able to apply at this time.
At the end of the day, this has been an extraordinary time in the world of immigration.
When the DAPA program and the expanded DACA program were announced, many immigration reform advocates cheered.
The DAPA program was intended to help parents of U.S. Citizens and Permanent Residents who have no other means of obtaining legal status in the United States. The program was intended to be a stopgap measure to help a segment of this population since Congress appeared to be unwilling to allow other immigration reform measures to come to a vote, such as SB 744, an immigration reform bill which was passed in the Senate in 2013. After the bill cleared the Senate, then-Speaker of the House John Boehner prevented the bill being introduced for a vote on the House floor.
The DACA Program (not to be confused with DAPA) was initially announced on June 15, 2012. This program was introduced to help young people (those who arrived in the U.S. before age 16 and were under age 31 when the program was introduced) obtain work authorization and temporary protection from deportation. This program was not challenged. In November 2014, when President Obama announced his executive actions for immigration reform, he stated that the Federal Government would expand the parameters of the original DACA program to include more people, since the original DACA program had specific (and relatively narrow) eligibility requirements.
By February 2015, the state of Texas and several other states filed suit to enjoin the government from implementing DAPA and expanding DACA. A Federal District Judge in Brownsville granted the injunction, and the 5th Circuit Court of Appeals affirmed this decision. The Federal Government petitioned for review of these decisions at the Supreme Court.
Justice Scalia’s passing over Easter weekend this year was unexpected, and Republican Party leaders rushed to note that it would be inappropriate for President Obama to try to fill Scalia’s seat on the Supreme Court as we were in the midst of an election year. Immigration lawyers wondered what this might mean for the Texas ruling and quickly realized that a 4-4 split was entirely possible. This split in the Court’s holding today means that the injunction against implementing DAPA and expanding DACA remains in place.
What This Means for Undocumented Immigrant Parents
This holding leaves many undocumented individuals who have been in the United States for years without an avenue to obtain work authorization or any kind of authorization to remain in the United States without fear of deportation.
Kathryn N. Karam has exclusively practiced immigration law since November 2007. She is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Board Certification is given by the Texas Board of Legal Specialization to attorneys that demonstrate the highest public commitment to excellence in their area of law. Less than 10% of licensed Texas attorneys are Board Certified.