The “Decision” of the Supreme Court and the Future of the Programs

On Thursday the Supreme Court finally decided, or failed to decide, the case U.S. v. Texas. Specifically, the eight justices were split four-four. Because the lower courts blocked the federal government from implementing the two programs [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA+)], the four-four deadlock means that, at least for the time being, the programs will remain blocked.

However, it is entirely possible, if not likely, the case will return to the Supreme Court in the fall of 2017 or, more likely, the spring of 2018. It is expected that a ninth justice will be added to the Supreme Court in the first half of 2017. If Hillary Clinton is the next President of the United States, she is expected to have her administration ask for a rehearing on the subject once the ninth justice is confirmed.

Please remember that this ruling does not affect those who are eligible for the DACA program that was announced on June 15, 2012. Anyone who has DACA currently will be able to maintain DACA, until the program is revoked either by the Supreme Court or a future President. (Donald Trump has said that if he is elected President he would cancel the program.)

Finally please be advised that this decision does not affect the enforcement priorities laid out by the Department of Homeland Security. Thus, if you qualify for DACA+ or DAPA, you are not an enforcement priority and you should not be targeted for enforcement.

SUPREME COURT WILL DECIDE THIS SPRING IF THE EXECUTIVE ACTIONS OF DAPA AND THE EXPANSION OF DACA ARE CONSTITUTIONAL.

By Eric Horn

I am pleased to report that the Supreme Court announced that this past Tuesday (January 19) that they will decide the constitutionality of the Executive Actions President Obama announced on November 20, 2014. The two programs are known as DAPA, which is a new program, and an expansion of the existing program DACA, which the President announced in 2012.

DAPA is Deferred Action for Parents of American Citizens and Lawful Permanent Residents. DAPA would apply to persons who were undocumented on November 20, 2014 that entered and have lived here continuously since before January 1, 2010 and have offspring (including adults) who were American Citizens or Lawful Permanent Residents on or before November 20, 2014.

DACA is Deferred Action for Childhood Arrivals, and the proposed expansion would allow people who entered after June 15, 2007 but before January 1, 2010 and who otherwise qualified for the program to enroll.

Though both DAPA and DAPA have additional requirements, most notably criminal and security related requirements, the programs would be expected to provide over five million undocumented persons who temporary status, including a work permit, and the ability to apply for a social security number as well as a drivers license.

If it is found constitutional the Obama administration announced that there would be enough time to allow people to apply for and receive employment authorization before President Obama leaves office. This is significant because none of the Republican candidates for President have pledged to continue the program should they win the election in November. It is expected that the court would hear oral arguments on the case in April. A decision by the Supreme Court would be made by June 2016.

Stay tuned.

Eric Horn is an attorney and the President of Law Office of Eric Horn, P.C. Mr. Horn is a member and past chairman of the Immigration Committee of the Suffolk County Bar Association. Mr. Horn is also an active member of the American Immigration Lawyers Association (AILA). Listen to Mr. Horn answer callers’ questions and discuss immigration and nationality law on 540AM Mondays from12:30pm to 1:30pm. To schedule a consultation in either his Brentwood or Westbury office, please contact (631) 435-7900.