Future of DAPA and expanded DACA uncertain after Justice Scalia’s death

A key lawsuit over the programs is pending before the U.S. Supreme Court.

The drama related to immigration issues could not have been foreseen. Republican Donald Trump wants to build a wall on the border with Mexico and undertake massive deportation of undocumented immigrants. On the other hand, Democrats advocate reform that would give relief to undocumented immigrants, especially DREAMers, who have lived productive, lawful lives in this country.

While the presidential candidates have dominated the news, the sudden death of U.S. Supreme Court Justice Antonin Scalia could have an impact on the future of two of President Obama's immigration relief programs: DACA and DAPA. Because of the justice's passing, the outcome of an important lawsuit pending before the Supreme Court is uncertain.

For background, we direct you to our previous article about the Deferred Action for Childhood Arrivals or DACA program that started in 2012. DACA provides respite from deportation for so-called DREAMers - undocumented immigrants brought into this country as children who have lived lives free from serious crime and meet certain educational or military requirements. Qualified applicants receive deferred action from deportation for two years, subject to renewal, during which time they may work in the U.S. legally.

Frustrated by Congressional inaction on immigration reform, President Obama announced in November 2014 that he was taking executive action to widen the pool of people eligible for DACA and extend the amnesty period to three years. He also ordered the implementation of a new program entitled Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA. DAPA would provide similar relief for undocumented immigrants who meet similar qualifications and are parents of citizens or legal residents.

Before these presidential initiatives could begin, 26 states sued the federal government to prevent the actions. The judge in the U.S. District Court in Brownsville, Texas, issued a nationwide temporary injunction ordering the administration not to proceed pending trial. The injunction was affirmed by the U.S. Court of Appeals for the 5th Circuit and the U.S. Supreme Court agreed to hear the case on its merits on January 19, 2016.

The Supreme Court will consider four legal issues:

  • Do the states have the right to bring this lawsuit?
  • Did the president exceed his authority?
  • Was the executive action the same as issuing a regulation, which to be legally adopted must go through a formal process of public input?
  • Did the president violate the constitutional requirement that he take care to faithfully execute the law?

Court watchers were speculating that a decision would probably be issued in the summer of 2016, but then Justice Scalia passed away, leaving several unknowns. The court may or may not adhere to its planned schedule with a vacant seat. It is unclear whether the president can appoint a justice and get Senate approval before the case is heard. An evenly split 4-4 decision is possible with only 8 justices, which would let stand the lower court opinions. The trial court never held a trial on the issue because its injunction was appealed first, so that could be the next step. All of this could take months, which may make the matter moot if President Obama leaves office before resolution.

This legal quandary makes it hard for some to plan for the future. In the meantime, applications and renewals are being accepted for DACA. An attorney can assist with the complex application process.

Attorney Raymond Lo of the Law Offices of Raymond Lo, LLC, with offices in Jersey City and Clifton, New Jersey, and New York City, represents clients in a wide variety of immigration matters in New Jersey, New York, nationally and internationally.