As Implementation Nears, U.S. Deferred Action Programs Encounter Legal, Political Tests

In the coming weeks, the most dramatic executive action on immigration of the Obama presidency—a directive that could protect up to 3.7 million unauthorized immigrants who are parents from deportation—will face a series of legal and political tests. However, the administration and supporters of the directive are pressing ahead with its implementation, even as more than half of U.S. states have challenged it in federal court, and the House of Representatives has voted to block it from taking effect and to strip current Deferred Action for Childhood Arrivals (DACA) beneficiaries of their protection.

The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expansion of the existing DACA program are part of a series of sweeping executive actions on immigration announced by President Obama in November 2014. The DAPA program offers temporary protection from deportation—and work authorization—to unauthorized immigrants who are parents of a U.S. citizen or lawful permanent resident (LPR) and have resided in the United States for five years or more. Initiated in June 2012, DACA is a similar program for unauthorized immigrants who entered the United States before the age of 16 and are enrolled in school.

The Department of Homeland Security (DHS) will begin accepting applications for the expanded DACA program on February 18, and for the DAPA program sometime in May. Up to 3.7 million unauthorized immigrants could qualify for DAPA, while the DACA expansion could increase the eligible population by 290,000, bringing the total potential DACA pool to 1.5 million. In all, the Migration Policy Institute (MPI) estimates that up to 5.2 million unauthorized immigrants could benefit from the combined DACA and DAPA programs.

States’ Lawsuit against the President’s Executive Actions

The most serious threat to the executive actions to date comes on the legal front. A federal district court judge in Brownsville, Texas is soon expected to issue his first ruling in a lawsuit brought by a coalition of 26 U.S. states against the new deferred action programs. The states are seeking a preliminary injunction to prevent the implementation of DAPA and the DACA expansion while the merits of the lawsuit are decided, a process that could take months. The plaintiffs argue that the new relief programs, unless enjoined, will cause irreparable harm to their states. They claim that the programs will ”trigger a new wave of undocumented immigration” and lead to increased state costs for law enforcement, health care, and education. The lawsuit also asserts that President Obama’s executive actions violate provisions of the Administrative Procedure Act (APA) because they failed to go through the necessary “notice and comment rulemaking” process. The plaintiffs further contend that “the lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. constitution.” 

If the judge declines to enjoin the executive actions, it will clear the way for the administration to begin accepting DACA expansion applications in late February, and DAPA applications in May. If the judge hands down an injunction, however, DHS would be temporarily blocked. In that case, the administration would undoubtedly seek a stay on the injunction and if denied, request an emergency stay from the 5^th U.S. Circuit Court of Appeals. If a stay were granted, DHS would be permitted to proceed with implementing the programs; if denied, the all but certain appeal would move to the U.S. Supreme Court. Depending on how long it takes for the question of injunction to be resolved, DHS may be forced to delay the rollout of one or both programs.

While most legal experts do not expect the states’ lawsuit to ultimately succeed on the merits, many predict that the judge hearing the case, Andrew Hanen, may be inclined to enjoin the deferred action programs. Judge Hanen gained political attention in late 2013 when he issued an order in a criminal smuggling case that characterized the Obama administration’s policies toward unaccompanied children arriving at the border as aiding smugglers and “encouraging parents to seriously jeopardize the safety of their children.” Despite his statement during opening arguments in the states’ lawsuit (Texas v. United States) that his court would not be a "complaint department" to air grievances about the actions of the executive branch, and that the case is "an area of legitimate debate," many believe that the judge’s prior stated opinion suggests that he is sympathetic to the states’ position. The 5^th Circuit, which would hear any appeals of Judge Hanen’s ruling, is also generally considered to be hospitable to the claims raised in the lawsuit. In a related case, the same circuit in February heard arguments in a challenge to DACA brought by Immigration and Customs Enforcement (ICE) union leader Chris Crane. How the 5^th circuit rules in that case may portend how it will rule in the states’ lawsuit in Texas.

Given the importance of the issues it presents, the lawsuit, even at the district court level, has prompted a diverse set of voices to weigh in. Amicus briefs in support of DAPA and DACA have been filed by major civil rights and immigrant advocacy organizations, 12 Democratic-led states, a group of prominent law enforcement leaders including the police chiefs of Boston, Denver, Los Angeles, Philadelphia, San Francisco, and Seattle, as well as several county sheriffs, and a coalition of more than 30 Democratic city mayors. The law enforcement officials’ brief contends that the deferred action programs will improve public safety “by encouraging community cooperation with police” and “providing individuals with the opportunity to obtain verified and secure identification” and that an injunction would harm public interest. The mayors argue that “DACA and DAPA will fuel economic growth in cities across the country, increase public safety and public engagement, and facilitate the full integration of immigrant residents by promoting family unity and limiting family separation.” On the other side of the debate, the CATO Institute and several prominent lawyers also filed an amicus brief supporting the injunction on the grounds that the DAPA directive “exceeds the executive branch’s lawful authority” and “is inconsistent with the comprehensive framework that Congress established in the Immigration and Nationality Act (INA).”

While the states’ lawsuit presents the most immediate threat to the new DACA and DAPA programs, it was not the first legal challenge to the executive actions, and will likely not be the last. The deferred action programs overcame their first legal hurdle when the U.S. District Court for the District of Columbia dismissed a separate suit seeking to halt the programs in December 2014. The judge found that the plaintiff, Maricopa County, Arizona Sheriff Joe Arpaio, lacked standing to bring the lawsuit because he failed to establish that the administration’s policies would legally harm the county. House Speaker John Boehner (R-OH) has indicated that the House and Senate jointly are also considering a legal challenge to the president’s executive actions.

The Political Fight

President Obama’s executive actions face staunch opposition in the Republican-controlled U.S. Congress, where many lawmakers are seeking to block them through a must-pass measure to fund the Department of Homeland Security after its coffers run dry on February 27. The move has precipitated a potential showdown over immigration in the coming weeks. In January, the House approved a DHS spending bill that includes a measure to block the DAPA program from going into effect, repeal DACA, and undo several additional immigration policies instituted by the administration in recent years. But the DHS bill with the immigration provisions was met with strong opposition from Senate Democrats, who called instead for a spending bill that would fund DHS without any policy riders. After Senate Democrats blocked the spending bill three times, Senate Majority Leader Mitch McConnell (R-KY) sent the legislation back to the House on February 10, saying: "I think it's clear we can't go forward in the Senate." Even if the spending bill were to pass Congress with the immigration riders, President Obama has threatened to veto any bill that would undo his actions on immigration.

Should Congress fail to pass an appropriations bill by the February 27 deadline, DHS will officially shut down, albeit largely in name only as the vast majority of employees, deemed essential for national security reasons, will be required to remain on the job, but without pay.  

A recent failed attempt by the House to pass a border security bill underscores the difficulties presented by immigration issues for congressional Republicans. In January, the House Homeland Security Committee approved a border security bill introduced by Chairman Michael McCaul (R-TX), who characterized it as Congress’ “toughest border security bill ever.” However, House leadership was forced to withdraw it amid opposition from hardline conservatives who argued that the bill did not go far enough to address interior immigration enforcement, and that it could be used to open a broader debate over immigration reform legislation.

Pressing Ahead

Despite the looming threats to the president’s executive actions, the federal government, states and localities, nongovernmental organizations (NGOs), and legal service providers are pressing ahead with their plans for implementation. The White House has launched a national public relations campaign ahead of implementation, expressing confidence in the legality of the executive actions and the economic benefits they will bring.

A number of city governments, including Chicago, Los Angeles, New York, and San Francisco have assumed an active role in promoting and preparing their cities for implementation of DAPA and the DACA expansion. City officials are holding trainings for legal service providers, workshops for immigrants to help prepare their applications, and conducting outreach efforts to boost application enrollments. When asked recently whether the legal perils were affecting Los Angeles’ plans, Mayor Eric Garcetti said, "We're going to move forward. We can't afford not to."  Local and national NGOs and legal service providers are also gearing up, but many are concerned that the political and legal challenges may create a chilling effect on the willingness of eligible immigrants to come forward and apply.  

• Mayors’ amicus brief opposing the preliminary injunction in the states’ lawsuit
• Law enforcement amicus brief in support of the president’s executive actions in the states’ lawsuit
• CATO Institute amicus brief supporting the states’ request for injunction
• Judge Andrew Hanen’s 2013 order on child smuggling

National Policy Beat in Brief

FY 2016 Presidential Budget Request Includes $1 Billion for Central America. As part of its fiscal year (FY) 2016 budget, the Obama administration proposed a $1 billion aid commitment to Central America to address the underlying conditions driving unaccompanied child and family migration to the United States. The requested funding aims to curb such migration by improving the security, governance, and economies of El Salvador, Guatemala, and Honduras. As an estimated 6 million young Central Americans are expected to enter the labor force over the next decade, the Obama administration argues that focusing resources in the region now will be cost-effective in ensuring stability in the Western Hemisphere over the long term. The budget also requests additional funding for new personnel, infrastructure, and technology along the U.S.-Mexico border. 

• Obama administration FY 2016 budget request
• New York Times op-ed by Vice President Biden on financial commitment to Central America

DOJ Delays Immigration Court Cases until 2019. In mid-January, the Executive Office for Immigration Review (EOIR) within the Department of Justice (DOJ) began rescheduling nonpriority immigration court dates to November 29, 2019, delaying thousands of immigration hearings by nearly five years. The delay is a result of the Obama administration’s new policy of prioritizing the cases of unaccompanied minors and families in immigration court, according to an EOIR spokeswoman. The delays have drawn attention to chronic backlogs in the overburdened and under-resourced immigration court system; they also have drawn criticism from conservatives. Currently, there are about 230 immigration judges responsible for processing a backlog of more than 375,000 cases, resulting in an average wait time of nearly 600 days for a case resolution.

• Wall Street Journal article on the immigration hearing delays

U.S. Accepting Applications for New In-Country Refugee Processing Program. The Department of State began accepting applications for the recently announced Central American Minors (CAM) Refugee/Parole Program on December 1, 2014, according to a statement issued by the Office of Refugee Resettlement (ORR) on February 6. The program allows parents who are lawfully present in the United States (including permanent residents, holders of Temporary Protected Status [TPS] and Deferred Enforced Departure [DED], parolees, deferred action recipients, and Withholding of Removal grantees) to request refugee status for their children residing in El Salvador, Guatemala, and Honduras. According to the Department of Health and Human Services, the new program was created to provide “a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States.” To qualify, a child must be unmarried, under the age of 21, a national of Honduras, Guatemala, or El Salvador, and reside in his/her country of nationality. A parent of a qualifying child can be included in the program if s/he is part of the same household and economic unit as the qualifying child, legally married to the qualifying parent, and continues to be legally married to the qualifying parent. The application process can be initiated at designated resettlement agencies and there is no fee to participate. DNA testing will be conducted to prove the familial relationship between children and qualifying parents.

• U.S. Department of Health and Human Services release on the CAM Program
• CAM Program Frequently Asked Questions

H-2B Visa Cap Reached for the First Half of FY 2015. On February 2, U.S. Citizenship and Immigration Services (USCIS) announced that it will stop accepting new petitions for H-2B visas for the first half of fiscal year (FY) 2015. As a result, USCIS will reject any new H-2B worker petitions requesting an employment start date before April 1, 2015 that was received after January 26, 2015. Each fiscal year USCIS may issue 66,000 new H-2B worker visas with 33,000 allocated to those starting employment in the first half of the year (between October 1 and March 31) and 33,000 allocated to those starting employment in the second half of the year (between April 1 and September 30). The H-2B temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

• USCIS release on H-2B cap being reached
• Learn more about the H-2B visa program and cap count

Report Finds that 15 Percent of Border Crossers Are Parents of U.S. Citizens. On January 8, Human Rights Watch (HRW) released analyses of U.S. Customs and Border Protection (CBP) data on nearly 700,000 adult and child migrants apprehended along the U.S. border by CBP during FY 2011 and 2012. Nearly 15 percent (101,900) were the parent of a U.S.-citizen child, potentially affecting a total of 202,000 U.S.-citizen children, according to the organization’s estimates. The study also found that 60 percent of parents with U.S.-citizen children who were apprehended at the border were subjected to expedited removal or reinstatement of removal, two nonjudicial forms of removal that do not provide an opportunity to make a claim before a judge to remain in the United States. According to the data analyzed, fewer than 10 percent of parents of U.S.-citizen children were given an opportunity to request relief before an immigration judge based on familial ties. Moreover, HRW found that parents of U.S.-citizen children were 1.35 times more likely to be charged with an illegal entry or re-entry crime offense in criminal court than nonparents.  

• Human Rights Watch news release on parents of U.S. citizens caught at the border

Sen. Sessions Tapped to Head Senate Immigration Subcommittee. On January 22, Senator Jeff Sessions (R-AL) was named Chair of the Senate Judiciary Committee’s Subcommittee on Immigration, renamed the Subcommittee on Immigration and the National Interest. Sessions is one of the GOP’s most outspoken critics of any legalization for unauthorized immigrants, is opposed to increases in immigration levels (legal and illegal), and has strongly condemned President Obama’s recent executive actions on immigration. The new Deputy Chair, Senator David Vitter (R-LA), holds similar views on immigration.

• Sen. Sessions’ committee assignments

State and Local Policy Beat in Brief

State Immigration Measures Decline in 2014. In 2014, state legislatures passed 171 immigration laws, with California leading the count with 54 laws and resolutions, according to a report issued by the National Conference of State Legislatures (NCSL). This is a 7.5 percent decrease from 2013; however, the decline can be partially attributed to four state legislatures being out of session last year. Of the immigration laws that passed, 22 percent were related to budgeting and appropriations, 16 percent focused on law enforcement, and 15 percent dealt with driver’s licenses and other forms of ID.  None of the bills addressed E-Verify or extending driver’s licenses to unauthorized immigrants, and no states passed omnibus immigration enforcement legislation in 2014.

• National Conference of State Legislatures’ 2014 Immigration Report