The U.S. Supreme Court on June 23rd kept in place for now the lower court injunction that blocked implementation of the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The Court was not able to break a 4 to 4 tie, and therefore its decision will have no precedential effect. Nevertheless, it means that the lower court injunction will likely continue in place until the Court hears the case again.
What is the lawsuit about?
The lawsuit, State of Texas, et al v. United States, was filed in December 2014 by 26 states and challenged two aspects of the immigration initiatives that President Obama announced on November 20, 2014. Specifically, the states alleged that the expanded DACA and DAPA programs were created in violation of the law and would have caused economic injury to the states that must finance the education, protection, and issuance of driver’s licenses to future recipients of deferred action under these programs.
What was the lower court’s decision?
On February 16, 2015, the federal district court in Brownsville, Texas issued a preliminary injunction that blocked implementation of the expansion of DACA and the implementation of DAPA. The judge found that the federal government violated procedural requirements under the Administrative Procedure Act by not using formal rulemaking procedures in creating these initiatives. This decision was appealed to the Fifth Circuit Court of Appeals, which upheld the lower court; that decision was then appealed to the Supreme Court.
Does the injunction impact all executive actions on immigration announced by the President on November 20, 2014?
No, the injunction only impacts DAPA and expanded DACA. It does not block any other changes to immigration policies announced by the President last November and laid out through various DHS memoranda.
For example, the lawsuit does not affect the following:
- Expansion of the provisional waiver program that allows family members to waive the unlawful presence bar before leaving the United States
- Guidance clarifying what constitutes extreme hardship for those applying for waivers of certain grounds of inadmissibility (fraud, crimes, and unlawful presence)
- The “parole in place” program for individuals with family members in the U.S. Armed Forces
- Guidance clarifying eligibility for advance parole
- Replacement of the Secure Communities with the Prioritized Enforcement Program, and
- New immigration enforcement priorities that went into effect on January 5, 2015.
How does the injunction impact clients who want to apply for DACA?
The injunction does not affect the original DACA program that was created in 2012. Anyone who meets the program’s criteria established in 2012 may continue to apply – both first-time applicants as well as DACA recipients who seek to renew their deferred action and employment authorization. However, clients who were hoping to apply for DACA under the expanded criteria announced on November 20, 2014 are not eligible to apply.
How should I advise clients who already have DACA and want to renew?
Clients granted DACA under the program’s 2012 criteria may continue to renew their deferred action and employment authorization using Form I-821D. Beginning November 20, 2014, USCIS began granting DACA and work permits to initial and renewal applicants in three-year increments. DACA recipients who were granted three-year work permits prior to the February 16, 2015 injunction may continue to use them. However, following the injunction, USCIS reverted to issuing two-year grants of deferred action and work authorization until a court overturns the decision.
If my client received a three-year work permit, does he or she need to return it to USCIS?
This depends on the date your client’s initial or renewal DACA was approved. Only three-year DACA approvals and work permits issued after the February 16, 2015 injunction were issued in error. For those cases, USCIS has instructed DACA grantees to return the erroneously-issued three-year work permit and approval notice and has replaced them with an updated two-year work permit and approval notice. DACA applicants who were approved on or before February 16, are entitled to keep their three-year work permits. For more information, see the USCIS website.
What should I advise clients who want to apply for expanded DACA or DAPA?
Clients who qualify for expanded DACA or DAPA should also be screened for eligibility for other types of immigration relief. Advise clients to continue gathering documents necessary to show they meet the criteria for expanded DACA or DAPA and to save money for the $465 application fee. Click here for a customizable checklist of documents for potential DAPA clients. Ask clients for any records related to prior immigration violations as well as records of any arrests, citations, jail time, detentions, and court proceedings. If your client’s immigration history or criminal record history is not clear, consider filing Freedom of Information Act (FOIA) requests or FBI record requests so that you will have the information you need by time the programs are implemented. Finally, remind clients not to leave the country without permission, not to seek advice from unauthorized practitioners, and to check back with you for updates on when expanded DACA and DAPA implementation may proceed.
U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) officers have been instructed to identify individuals in detention or removal proceedings who may be eligible for expanded DACA or DAPA, and to exercise prosecutorial discretion, which may include seeking administrative closure or termination of proceedings. However, we recommend affirmatively contacting an ICE officer or the trial counsel to request termination of proceedings or administrative closure using the protocols described on the ICE Executive Action website. As part of requesting an exercise of prosecutorial discretion in your client’s favor, be prepared to argue that your client is not included in one of the enforcement priority categories. Finally, remember that clients may still request deferred action, more generally, under the process that has existed before DACA was created by submitting a request to the relevant DHS agency.
Resource updated 7/6/2016