What does Supreme Court’s ruling in DAPA and Expanded DACA mean?
Last week, the Supreme Court issued a 4-4 decision on the state of Texas’s challenge to President Obama’s proposed executive immigration programs. These programs included the Deferred Action for Parental Accountability (DAPA) program, which would have allowed some parents of U.S. Citizens and Permanent Residents to apply for a work permit in the United States and to be protected from deportation, and an expansion of the Deferred Action for Childhood Arrivals (DACA) program that was initially announced on June 15, 2012. The original DACA program allowed people who arrived in the U.S. before age 16 and were under age 31 when the program was introduced to apply for work authorization and protection from deportation. The expansion of the DACA program had been announced in order to allow more people to qualify for protection under DACA.
The Supreme Court’s decision, a 4-4 tie, meant that the injunction granted by Judge Hanen, a Federal District Judge in Brownsville, which had been affirmed by the 5th Circuit Court of Appeals will remain in place and the programs will not be implemented. This means that millions of undocumented individuals who have no serious criminal history, and no options to obtain work authorization.
In the wake of the decision, many questions surfaced about where this leaves people who might otherwise have benefitted from the executive immigration programs, and what it means for beneficiaries of the original DACA program.
I have DACA protection right now. Does the Supreme Court decision change anything about my situation? Will I lose my DACA work permit?
Individuals who have already received a work permit based on the 2012 DACA program have asked if the Supreme Court’s decision means they no longer have protection under the original DACA program. The decision does not change people’s ability to qualify for the original (2012) DACA program. A person qualifies for the original DACA program if he/she meets these requirements:
- The DACA Applicant was under age 31 on June 15, 2012
- He/she arrived in the U.S. before age 16
- The Applicant was physically present in the US on June 15, 2012 and on the date the application is filed
- He/she had no lawful status on June 15, 2012
- The Applicant has resided continuously in the US since June 15, 2007
- The Applicant has no felonies, no “significant misdemeanors,” and does not have three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
- He/she completed High School, GED, or was honorably discharged from Armed Forces.
If you are not sure if you qualify for DACA, especially if you have any absences from the United States after June 15, 2007 or if you have any criminal history, consult with an experienced immigration lawyer to determine if you can apply for work authorization under DACA.
I am undocumented and might have qualified for DAPA. What can I do now?
If you have been the victim of a crime in the United States and were helpful, are helpful, or may be helpful in an investigation by law enforcement, consult with a specialized immigration attorney to determine if you qualify for a U Visa. The U Visa is an option even if you are undocumented.
If you have a U.S. citizen child who is over 21, and you have a spouse or parent who is a U.S. citizen or permanent resident who will experience extreme hardship if you are required to leave the United States, you may qualify to apply for permanent residence based on a petition from your child and a waiver to cure your time in the United States after entering without authorization. The specifics of whether you qualify to apply depend on each person’s individual circumstances, so if you think you may qualify to apply for residence as the parent of a U.S. citizen who is at least 21 years of age, you should consult with a specialized immigration attorney about the circumstances of any entries you have made into the U.S., any documentation you have presented for immigration benefits or for any other purpose or benefit under federal or state law, and any criminal history you may have.
If you speak to an immigration attorney and determine that you do not have any options you can pursue at this time, you may choose to wait to see if Congress passes any new immigration laws, or if a new challenge to the implementation of the DAPA program changes the current situation.
Why didn’t the people who would’ve benefitted from the DAPA Program or Expanded DACA Program do something sooner?
I have been asked why people need a program like DAPA or an expansion of the DACA program. I recently met Phillip at a networking event. After I told him I practice immigration law, he asked why people who would’ve benefitted from DAPA or expanded DACA hadn’t done something earlier to get legal status. He noted that he read an article about a person who had come to the U.S. with a visitor visa at age six. He had graduated from college and gone on to obtain his MBA, but cannot get work authorization without DAPA. While many people may not realize it, this situation is common, and often occurs because people learn that they are in the United States without authorization as adults, when it is often too late to take action to remedy their situation. People also find out that they have no status, and have no realistic probability of getting legal status. This is why DAPA and the expanded DACA program were important – they gave people with no options an opportunity to do something.
For now, those who might have benefitted from these programs remain in limbo. This is a Presidential election year. If you are a U.S. citizen and are reading this, think about whether it makes sense to you that even people who want to do something to legalize their status cannot under current law. The ask your candidates for President and other federal offices what we can do to change this.