On November 10, 2015, the U.S. Court of Appeals for the 5th Circuit ordered to uphold an injunction against deferred action benefits for a broader group of students and parents of U.S. citizens. Over the last few days, I have spoken with countless people to clarify the confusion over the effect of the ruling, the future for the deferred action benefits, and the status of the first round of DACA benefits. So here is the breakdown:
First: The 2012 Deferred Action for Childhood Arrivals
In the summer of 2012 President Obama announced Deferred Action for Childhood Arrivals “DACA”, or benefits for the “dreamers”. The DACA benefits allowed a closed class of qualified, educated immigrants to request deferral from deportation and apply for work authorization. Upon the issuance of a work authorization card, over 550,000 DACA recipients have come out of the shadows - they are continuing their education, pursuing careers, opening businesses, contributing to the American economy and society. They represent an energetic, young, educated work force paying in to social security so that our aging baby boomers can settle more comfortably into their retirements.
While DACA does not allow a path to residency, DACA provides an important sense of freedom and belonging to recipients. DACA is an important step in the right direction. To date, the 2012 DACA benefits continue despite the November 10, 2015 decision by the 5th Circuit.
Second: The 2014 Expanded Deferred Action for Childhood Arrivals and Deferred Action for Parental Accountability
In late 2014, Obama announced an expansion of DACA, which would have broadened the class of qualified, educated immigrants eligible work authorization and deferral from deportation. Most notably, the expanded DACA removed the upper age cap for applicants. At the same time, Obama also announced Deferred Action for Parental Accountability or “DAPA”. Each of those benefits, expanded DACA and DAPA had timelines for implementation. Those timelines, however, were never realized because in February 2015, an injunction was filed to stop Expanded DACA and DAPA.
By the time the 2014 deferred action benefits were announced, the public already had a decent understanding of DACA, so the expanded DACA was not in the spotlight. The Deferred Action for Parental Accountability, or “DAPA”, however, was big news. The DAPA announcement offered hope to parents of U.S. citizens or Lawful Permanent Residents. The promise of DAPA was to provide qualified parents with work authorization and deferral from deportation. While DAPA parents would certainly benefit from a work authorization card, the real benefit would have been to their U.S. citizen or Lawful Permanent Resident children. Generally speaking, most immigration benefits are created for the benefits of U.S. citizens, not necessarily the foreign national. DAPA is no different – the true benefit is to the children because their parents, equipped with work authorization and the opportunity to apply for a license would be better equipped to participate in the society in which their children call home.
However, the expanded DACA benefit and DAPA benefits not come to pass. In February of 2015, Federal Judge Hannon of Texas issued an injunction on the implementation of Expanded DACA benefits and DAPA benefits.
Third: Legal Challenges to Expanded DACA and DAPA
In February of 2015, an injunction was filed in federal court to stop the implementation of expanded DACA and DAPA. It is significant to mention that the injunction was not filed in challenge of the Obama’s authority to issue such benefits. In fact, many prior administrations have issued deferred actions for groups of people – the most notable is Temporary Protected Status – the benefit that DACA was modeled from. Instead, the challenge made was a procedural challenge relating to the policymaking process. The allegation is that the Obama administration did not allow opportunity for a comment period as is required before giving legal force to a new regulation.
On November 10, 2015, the U.S. Court of Appeals for the 5th Circuit ordered to uphold an injunction against deferred action benefits. That ruling will most likely be appealed to the U.S. Supreme Court. Immigration advocates hope that the ruling will be made before President Obama leaves office.
Fourth: The Future of Expanded DACA and DAPA
The Obama administration is expected to appeal the decision to the U.S. Supreme Court. While it is likely that the case will be appealed, it is uncertain as to whether a decision can and will be made before the November 2016 Presidential election. Right now, the future of expanded DACA benefits and DAPA benefits is unknown. What is known is that about 4.9 million eligible undocumented immigrants are waiting, hoping for the eventual implementation of the benefits announced a year ago. If passed, the U.S. children of DAPA recipients will likely push Congress for immigration reform to allow a pathway to citizenship for their parents.
What to Do?
First, it is important to remember that the 2012 DACA benefits continue without interruption. Those with DACA should continue to renew their DACA benefits, and many people are now begining to become eligible as they get older. Those with DACA should consult with a lawyer to find out if they can travel abroad on an advance parole document. Lawful travel on an advance parole document can create a bridge over a previous unlawful entry and open the door to future immigration options.
The second things that people should do is continue to pursue the options that will take longer, but nonetheless resolve a person's immigration issue. For example, the provisional waiver program will soon expand to cover more relationships. The first step in any visa process - filing the immigrant visa petition - should happen now. If you were hoping to qualify for 2014 DACA or DAPA, you should still consult with the attorneys at WLG. We will evaluate your options. We want to find a way to help you.