President Obama’s Executive Actions on Immigration – Update
By Board Certified Houston Immigration Attorney Ruby L. Powers
Powers Law Group, P.C.
May 23, 2016
On November 20, 2014, President Obama announced a series of executive actions to limit illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
The two initiatives, most important to many immigrants, include expanded DACA and DAPA:
- Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years.
- Allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.
Due to a federal court order initiated from the state of Texas from February 16, 2015, USCIS was not able to accept requests for the expansion of DACA on February 18, 2015 as originally planned and suspended implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The court’s temporary injunction, issued February 16, did not affect the existing DACA. Individuals could continue with requesting an initial grant of DACA or renewal of DACA under the original guidelines.
The federal court order litigation escalated to the Supreme Court. On April 18, 2016, the Supreme Court heard oral arguments in United States v. Texas. There are only eight justices, normally nine, currently on the bench after Justice Alito Scalia’s February 2016 passing. If there is a tie of 4-4 at the Supreme Court, then the case will be sent back to the 5th Circuit, which will maintain the unfavorable ruling for immigrants. It is believed Justice Scalia’s death will not affect the decision as he would have ruled against it anyway.
It is thought that since the case has a mixture of issues not only immigration law but also on legal points of standing and executive power, that the case might be favorable to the Administration and immigrants with a 5-3 holding and possibly a narrow decision on use of executive power. Listening to the justices during the oral argument, it didn’t seem like they believed that Texas would be so inconvenienced by issuing driver’s licenses to all people who are approved DAPA and expanded DACA as an undue burden. This was the main reason Texas said it contested the President’s actions. One concern is that one state can’t just challenge the President’s executive power when they want to and put the process on hold. Another concern is that the President’s executive powers not to be broadened more than allowed in the Constitution.
The results of the Supreme Court case should be released by mid to late June 2016. According to recent history, USCIS normally takes about 60 days or so to implement new programs. For example, the initial DACA was announced June 15, 2012 and started August 15, 2012. At an April 2016 American Immigration Lawyers Association conference in Washington, D.C., USCIS officials stated they couldn’t plan for DAPA and expanded DACA but they could think about it. They also stated it normally takes USCIS about 6 months to locate, hire, and train personnel. These announcements were not what immigration attorneys wanted to hear due to the limited time available before the next President takes office.
Considering we might learn the Supreme Court ruling in mid-June and wait until mid-August for implementation, we are very close to an unpredictable November election putting in place a new President by January 2017. The rest of 2016 will be very interesting as timing is crucial and we have already waited a year and a half since the President’s November 2014 announcement.
For many interested in applying if DAPA or expanded DACA were to be approved, they should collect evidence of residence since 2010, proof of their children’s birth certificates and/or statuses (for DAPA), and their criminal and immigration history if they have any. As potentially 3.7 million are awaiting the results, it would be best not to wait until the last minute to collect items that can sometimes take weeks or months to obtain.
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