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Major developments in lawsuit to stop executive action on immigration

Expanded DACA and DAPA are still on hold pending resolution of a suit before the U.S. Supreme Court.

The suit challenging President Obama's executive action on immigration may take an unexpected turn with the February 2016 death of U.S. Supreme Court Justice Antonin Scalia. While it had appeared that a summer 2016 Supreme Court decision would finally resolve the issue of whether DAPA and expanded DACA could go forward as ordered by the president, how that immigration law action will be resolved may be up in the air.

Since our previous article explaining the executive action, significant developments have occurred impacting Texas v. U.S., in which the state of Texas and 25 other states formed a coalition to sue the federal government in an effort to block implementation of the president's actions.

By way of review, citing frustration with congressional inaction on immigration reform, in November 2014, President Obama took executive action on immigration in which he ordered expansion of the DACA program and implementation of DAPA.

DACA or Deferred Action for Childhood Arrivals grants two years of deferred action from deportation plus work permits to eligible applicants, subject to renewal. DACA focuses on relief for DREAMers - undocumented immigrants who arrived in the U.S. as children, have nothing more serious than a minor criminal record and meet certain military service or educational requirements. The president wanted to expand the eligible DACA pool and extend the relief period to three years.

The executive action also ordered a new program: Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA, similar to DACA but for undocumented parents of citizens and lawful permanent residents.

Before the president's orders could be carried out, U.S. District Judge Andrew Hanen in February 2015 in Brownsville issued a nationwide temporary injunction ordering the program be put on hold pending resolution of the suit. The injunction was upheld on appeal to the U.S. Court of Appeals for the 5th Circuit after which the U.S. Supreme Court agreed in January 2016 to hear the case on its merits.

Four legal issues are before the Supreme Court:

  • Standing: whether the states had the legal right to file the suit
  • Presidential power: whether the president had the authority to issue the orders
  • Notice-and-comment: whether the actions amounted to regulatory action that required public notice and time for input
  • Constitutional adherence: whether the president took care to execute the laws faithfully

As of this February 2016 writing, court watchers are speculating about the impact of Justice Scalia's death on the court's docket. For Texas v. U.S., it is not likely that a new justice will be in place in time to hear it given the political juggernaut over whether President Obama should nominate and whether the Senate will confirm. While it is possible that a majority of justices could decide the case, if it results in a 4-4 tie, the lower court holdings would stand. Since the only action has been the injunction, it is possible the matter could go to trial before Judge Hanen, who is widely characterized as a conservative judge. By the time this would happen, President Obama's term may have ended, making the matter moot and leaving DACA and DAPA up to the next president and Congress.

In the meantime, the original DACA program is accepting applications and requests for renewal. Employing an attorney for assistance with DACA matters is a good idea because the application and documentation are extensive and complicated and opportunity for review of a denied application is very rare.

San Antonio-based lawyer Eric Bernal of Eric M. Bernal & Associates, LLC, represents clients in Texas and Arizona in DACA applications and renewals as well as in a wide variety of other immigration issues.

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