Quick Resolution of Challenge over Obama Administration Deportation Relief Programs Is Ever Less Likely

Amid a recent legal setback for the Obama administration over its executive actions to shield up to 4 million unauthorized immigrants from deportation, it is becoming increasingly clear that even if the deportation relief programs survive challenge, they might not be implemented until the final months of the Obama presidency—if at all.

In a victory for Texas and 25 other states opposing the executive actions, a federal appeals court recently refused the administration’s request to stay a lower court’s injunction blocking implementation of the deferred action programs announced by President Obama last November. Having refused the stay request, the Fifth U.S. Circuit Court of Appeals will now focus on the government’s appeal of the injunction with a hearing scheduled for mid-July. Even if the administration were to prevail there, the legal calendar suggests a narrowing window of opportunity for the deportation relief programs.

Stakeholder Strategies

U.S. District Judge Andrew Hanen’s February injunction and the denial of its stay have caused the Department of Homeland Security (DHS) to halt all work on implementing the president’s centerpiece executive actions: the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and expansion of the existing Deferred Action for Childhood Arrivals (DACA) program. This includes shelving plans to hire more than 1,000 new employees and leaving unused most of a building leased for the program in November.

While the administration remains stalled, immigrant advocates and service providers are pressing ahead with mobilization and outreach efforts in hopes of preparing a large number of eligible immigrants to apply, if and when the programs launch. Their eye is on the clock, as their opening to assist a sizeable number of unauthorized immigrants may be brief, coming in the waning months of the Obama administration.

Some Republican lawmakers, meanwhile, are preparing their strategy should the courts eventually allow the administration to proceed with the deportation protection programs that have drawn major opposition from conservatives. For example, Senator Ted Cruz of Texas recently introduced legislation that would bar DHS from using immigration fees to fund DAPA and DACA.

DAPA, which would offer protection from deportation and work authorization to qualified unauthorized immigrants who are parents of a U.S. citizen or lawful permanent resident (LPR), could potentially benefit up to 3.7 million unauthorized immigrants, the Migration Policy Institute estimates. DACA is a similar program, implemented in 2012, for unauthorized immigrants who arrived in the United States at a young age and meet certain educational criteria. The November actions would have extended eligibility for DACA to an additional 290,000 unauthorized youth, bringing the total eligible population to about 1.5 million. The combined DAPA and DACA programs would thus potentially cover 5.2 million unauthorized immigrants.   

Timeline to a Final Decision

Oral arguments on the administration’s appeal of the preliminary injunction are scheduled for July 10. As the legal standard for reviewing a preliminary injunction is different from a grant of stay, and it is unclear if the same three judges from the panel that denied the stay will hear the appeal, it is possible that the Fifth Circuit panel may lift the injunction against DAPA and expanded DACA. Regardless, the losing side will certainly appeal the decision, either to the full Fifth Circuit, or directly to the U.S. Supreme Court. Ultimately, the case most likely will arrive at the Supreme Court; when it gets there will determine the timeline for a definitive ruling. Based on the current trajectory, if the case reaches the high court in the latter part of fall 2015, a decision is unlikely until the end of its term in June 2016.

This timeline could present serious challenges to the administration and its backers. Even if the Supreme Court ultimately lifts the injunction, the merits of the states’ challenge to executive action will still be winding their way through the courts. And if the government begins accepting applications before the program’s underlying legality is resolved, potential applicants may be reluctant to come forward.

Further, such timing could place the ruling squarely in the final stages of the 2016 presidential race. While the campaigns are in their infancy, candidates’ positions thus far suggest that President Obama’s immigration actions may become a touch point in the election. Democratic candidates are likely to campaign on keeping DAPA and DACA in place, or even expanding the population that could benefit. Republican candidates already face pressure from their conservative base to pledge they would rescind the deferred action programs if elected. On the other hand, some Republican contenders may feel the political imperative to adjust their platforms to appeal to the growing Latino electorate.

Swirling political focus and continued legal uncertainty about the program’s future could only lead to confusion among its potential beneficiaries. Many unauthorized immigrants may fear that their benefits could be revoked, and that a new administration could use their information to enforce deportation, rather than offer relief.

If the courts do not give a green light for the programs to proceed until late in President Obama’s term or after it ends, and a Republican president opposed to them is elected in November 2016, the deferred action programs may never be implemented.

Beyond Deferred Action

The DAPA program and DACA expansion have consumed the most oxygen in the debate over President Obama’s immigration actions. However, several important but overlooked policy changes announced in November remain in the works—and will also affect unauthorized immigrants in significant ways.

Enforcement

First, the administration significantly revamped its immigration enforcement priorities, placing top focus on removing convicted felons, national security threats, and recent arrivals and border crossers. The new guidelines instruct immigration agencies to exercise discretion in favor of unauthorized immigrants long resident in the United States and those with strong family and community ties in the country.

Second, DHS is ending the controversial Secure Communities fingerprint-sharing program operating in jails across the United States, and replacing it with the Priority Enforcement Program (PEP). PEP will continue to check the fingerprints of individuals arrested and booked in state and local jails against federal immigration databases, but limit who is referred to U.S. Immigration and Customs Enforcement (ICE) and how. Los Angeles County recently made headlines as one of the first major local jurisdictions to participate in PEP. Others will soon follow, ICE Director Sarah Saldaña told Congress recently, saying PEP will be fully operational in the next few weeks. Together, PEP and the new enforcement priorities have the potential to reduce interior (nonborder) deportations and provide some level of security to a majority of the 11.2 million unauthorized immigrants currently residing in the United States.

Access to Permanent Residency

Moreover, the administration plans to further expand eligibility and relax standards for a waiver (the I-601 provisional waiver) that will make it easier for an estimated 1.5 million eligible unauthorized immigrants already in the country to receive green cards based on family sponsorship. Currently, many unauthorized immigrants who qualify for immigrant visas can only receive them from abroad. However, departing the country could trigger a three- or ten-year ban on re-entry. The uncertainty of receiving a waiver of the bars deters many from pursuing their visas. The I-601 provisional waiver allows such unauthorized immigrants to receive their immigrant visas without being separated from their families for prolonged periods while they wait for approval abroad.

Additionally under the November executive actions, DHS is expected to issue guidance clarifying that when noncitizens—including deferred action beneficiaries—are granted “advance parole” and leave the United States, their departure will not trigger the three- and ten-year bans. Advance parole is a form of entry permission granted to noncitizens who do not have a valid visa to re-enter the United States after traveling abroad. The change could also allow certain previously unauthorized immigrants who are eligible for green cards to adjust to permanent resident status from within the United States. Furthermore, the agency will establish policy granting deportation protection and parole-in-place, which eases access to permanent residency, to certain unauthorized immigrants who are spouses, children, and parents of individuals seeking to enlist in the U.S. Armed Forces.  

Family Detention

After 68,000 families consisting largely of women and children crossed the border last summer, the government expanded family detention spaces, building three new facilities in Texas and New Mexico. The practice has come under fire with allegations of abuse and lawsuits contesting the legality of detaining asylum seekers as a method of deterrence and whether the facilities meet the standards required to house children. Several recent rulings in these lawsuits and pressure from members of Congress and immigrant advocates have prompted DHS to announce reforms to family detention. On June 24, DHS stated that families who successfully initiate the asylum process will be offered release—on bond amounts they can realistically pay. Screening for humanitarian protection will also take place within a shorter timeframe. The announcement builds on similar initiatives unveiled in May that made it easier for more women and children to be released from family detention or given alternative forms of detention such as electronic monitoring and frequent reporting to designated officials.

Legal Channels

Beyond the policies focused on unauthorized immigrants, other anticipated changes—prompted by calls from business lobbies and industries reliant on high-skilled workers—include creating or expanding opportunities for immigrants in science, technology, engineering, and mathematics (STEM) fields and immigrant entrepreneurs as well as streamlining the immigrant visa system. With 8 million lawful permanent residents eligible to become citizens, President Obama also ordered DHS to increase promotion of and reduce financial barriers to naturalization.

The Long Road

Given the stalemate facing President Obama’s deportation relief programs, attention is likely to shift as the other November directives are rolled out and implemented. As DAPA and DACA travel the long road through the courts, supporters and opponents undoubtedly will continue to search for other means to realize their goals. The immigrant advocacy community will likely increase promotion and monitoring of the other new policies while continuing to pressure for deferred action to proceed. Lawmakers may increasingly turn to small-bore immigration bills as the 2016 election approaches. However, large-scale overhauls to the U.S. immigration system have again been placed on hold for the foreseeable future.

• Fifth Circuit ruling in Texas v. United States
• President Obama’s November executive actions
• Washington Post article on the Obama administration halting work on DAPA
• ICE Director Saldaña testimony reviewing the executive actions
• USCIS information on the I-601 provisional waiver

National Policy Beat in Brief

Supreme Court: Immigrants Prejudiced by Ineffective Counsel Can Turn to Appeals Courts. In an 8-to-1 decision this June, the Supreme Court held that federal appeals courts have jurisdiction over judgments by the Board of Immigration Appeals (BIA) and that plaintiffs are allowed to reopen their cases based on ineffective counsel. The plaintiff, Noel Reyes Mata, was ordered deported after which his lawyers failed to properly file an appeal to the BIA in time. Upon retaining new counsel, Mata filed for a reopening of the case, based on lawyer’s error. The BIA dismissed his appeal; Mata then appealed to the U.S. Fifth Circuit Court of Appeals, arguing that his legal rights had been denied by his lawyer’s failure to appeal the deportation order. The Fifth Circuit ruled that it could not overturn the BIA decision. The Supreme Court, however, determined that the Fifth Circuit does have jurisdiction to consider such appeals.

• U.S. Supreme Court opinion in Mata v. Lynch

ICE Fines Washington Orchard $2.25 Million for Immigration Violations. On June 4, officials from U.S. Immigration and Customs Enforcement (ICE) announced that Broetje Orchards in Washington State has agreed to pay a $2.25 million fine for hiring unauthorized immigrants. One of the country’s largest apple growers, Broetje Orchards employed nearly 950 unauthorized immigrants, and received one of the largest ever fines for an agricultural employer. The Obama administration has audited more than 13,700 companies since January 2009, mostly in the agriculture, construction, hospitality, and manufacturing sectors, that have subsequently paid tens of millions of dollars in fines and terminated thousands of unauthorized workers. Under the Immigration Reform and Control Act of 1986, employers are required to verify their employees’ identity and employment eligibility, and provide documentation via the I-9 Employment Eligibility Verification form. ICE can compel employers to provide I-9 forms in order to audit their compliance with the law.

• ICE factsheet on the ICE I-9 inspection process

Supreme Court: U.S. Courts Cannot Review a Consular Decision. In June, the Supreme Court ruled in Kerry v. Din that the federal government does not owe a U.S. citizen a detailed explanation for refusing to grant their spouse an immigrant visa. The case was brought by Fauzia Din, a naturalized U.S. citizen, who filed an immigration petition for her foreign-born husband. He was deemed ineligible for an immigrant visa because of “terrorist activities,” but no further explanation was given. Under the longstanding legal doctrine called “consular nonreviewability,” visa decisions of consular officers are precluded from judicial review. Din filed suit, arguing that the visa denial interfered with her fundamental right to marriage. A federal appeals court in California agreed with Din, ruling that she was entitled to a “facially legitimate reason” for the denial. The Supreme Court disagreed, however, and in the ruling opinion, Justice Kennedy held that the government satisfied due process by simply notifying Din’s husband that he was denied under the terrorism bar.

• U.S. Supreme Court opinion in Kerry v. Din

Supreme Court Rules on Jerusalem Passports. In Zivotofsky v. Kerry, the Supreme Court ruled that Congress cannot require the Department of State (DOS) to issue passports recognizing Jerusalem as part of Israel. The case involved a child born to American parents in Jerusalem in 2002. His parents sued to have Israel listed as their son’s country of birth on his passport in accordance with a law passed by Congress in 2002 instructing DOS to, upon request, list Israel as the birthplace of Jerusalem-born U.S. citizens. The Obama administration argued that the law violated its policy of neutrality on the question of Jerusalem’s sovereignty. In striking down the law, the Supreme Court ruled that the executive branch has the exclusive authority to decide which state has sovereignty over Jerusalem. 

• U.S. Supreme Court opinion in Zivotofsky v. Kerry

USCIS Reopens H-2B Petitions for Second Half of FY 2015, Cap Quickly Reached. On June 5, U.S. Citizenship and Immigration Services (USCIS) resumed accepting H-2B petitions under the fiscal year (FY) 2015 cap for workers with an employment start date between April 1 and September 30. Each year USCIS has the authority to grant a statutorily fixed cap of 66,000 H-2B visas, divided evenly between the first and second halves of the fiscal year. On April 2, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the annual cap, and stopped accepting petitions. However, after consultation with DOS, which issues the visas, USCIS determined that the number of H-2B visas issued was substantially lower than expected, with a portion still available for the second half of FY 2015. After accepting additional petitions for several days, USCIS announced on June 15 that the cap had been reached. The H-2B program allows U.S. employers to petition for foreign workers to fill short-term nonagricultural jobs on a temporary basis.

• USCIS announcement on the H-2B Cap
• April Policy Beat on recent H-2B court cases

EOIR Expanding Size of BIA. On June 3, 2015, the Executive Office for Immigration Review (EOIR) issued an interim rule with request for comments that would add two members to the BIA. Written comments must be submitted on or before August 3. The rule increases the size of the Board, the highest administrative review body within EOIR, to 17 members.

• EOIR interim rule and request for comments

H-1B Program Use Comes Under Scrutiny. Recent reports suggest that last October, 250 Disney employees were laid off and many of their jobs transferred to foreign workers on H-1B visas. The jobs were outsourced through an India-based firm, and some of the U.S. employees say they were required to train their replacements. The news comes after another U.S. company, Southern California Edison, received public backlash for similarly laying off more than 500 tech employees to allegedly replace them with temporary H-1B workers, also recruited by two Indian firms, Infosys and Tata Consultancy Services. On June 11, the U.S. Department of Labor (DOL) announced that it had opened an investigation into the two outsourcing companies. In order to participate in the H-1B program, employers must attest to providing working conditions that will not adversely affect other similarly employed workers, and must pay the H-1B employees the prevailing wage.

• The New York Times article on the Disney layoffs

TPS Extended for Somalia. On June 1, DHS Secretary Jeh Johnson announced that Temporary Protected Status (TPS) would be extended for nationals of Somalia through March 17, 2017. Individuals from Somalia who already have TPS have been given a 60-day period from June 1 through July 31 to re-register for the program. Somalia has been designated for TPS since September 1991, after insurgents ousted dictator General Mohamed Siad Barre. The United States grants TPS, which includes protection against deportation and permission to work, to nationals of designated countries deemed unsafe for repatriation due to ongoing armed conflict or a natural disaster. Currently, 12 countries are designated for TPS status—El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, and Syria.

• USCIS information on the TPS program

State and Local Policy Beat in Brief

Nebraska Last State to Allow Driver’s Licenses for DACA Youth. On May 28, Nebraska’s legislature voted to allow state driver’s licenses, effective immediately, for recipients of Deferred Action for Childhood Arrivals (DACA). In doing so, the legislature overrode a veto by new Republican Governor Pete Ricketts. Nebraska became the last state to allow driver’s licenses for DACA recipients following Arizona's compliance with a Supreme Court decision allowing them to apply for licenses.

• Nebraska Legislative Bill 623 on licenses for individuals with lawful status

Hartford, CT to Begin Municipal ID Program Open to Unauthorized Immigrants. In June, City Council members in Hartford, CT unanimously approved a municipal identification program that will grant IDs to Hartford residents regardless of race, age, gender, arrest or conviction record, sexual orientation, or immigration status. The ID will allow residents to apply for benefits such as food vendor licenses, bank accounts, housing, and supplemental nutritional programs, as well as to access the city’s free health clinic for the uninsured. Other cities with municipal identification cards open to unauthorized immigrants include Oakland and San Francisco, CA; New York City; and New Haven, CT.

• Hartford mayoral proposal for municipal ID program

Louisiana Passes Bill Introducing ID Requirements for Marriage. In June, Louisiana’s state legislatures approved a bill requiring presentation of a birth certificate, valid international ID, or passport in order to receive a marriage license, in effect making it more difficult for unauthorized immigrants to be married in the state. The bill’s backers cited a desire to reduce fraudulent marriages. The bill is now before Governor Bobby Jindal (R) for consideration.

• Louisiana House Bill 836 requiring identity documentation for marriage licenses