Supreme Court unable to reach decision on DACA+ (“Super DACA”) and DAPA
By Attorney Farhad Sethna ©2016
On June 23, 2016, the United States Supreme Court announced that it had a split decision (4-4 vote) and therefore had failed to reach a decision on President Obama’s executive action expanding DACA (Super DACA, as I referred to in my previous blog articles) and DAPA.
Briefly, what this means is that the executive actions that were promulgated by President Obama in November 2014 will not go forward. This means that millions of immigrants who had either entered the United States illegally or whose legal status had expired are now without any recourse to apply for either of these proposed legal statuses.
Why did the Supreme Court not rule in President Obama’s favor?
Actually, the Supreme Court did not rule either way. Because the death of Justice Antonin Scalia of the Supreme Court reduced the number of Justices of the Supreme Court from nine to eight, the Court could not make a decisive ruling. In other words, if four justices rule one way, and the other four rule the other way, the decision does not have a tie breaking vote as it would with nine justices.
Therefore, the Supreme Court’s four-to-four deadlock in this case meant that the decision of the underlying appeals court continued to be in effect.
Since the underlying appeals court for the Fifth Circuit Court of Appeals held against President Obama’s executive action, that underlying decision continues to apply. Additionally, since the judge who initially rules against President Obama’s executive action had placed a nationwide injunction on the Super DACA and DAPA programs, that nationwide injunction also continues to apply. I have discussed all these issues in other articles on my blog.
What does this mean for the existing DACA program?
The existing DACA program (2012) was not part of the underlying legal challenge heard at the Supreme Court. Therefore, the USCIS continues to process DACA applicants applying under the existing process. Individuals who received DACA through the existing application process or who applied for renewals through the existing application process will continue to benefit from the earlier DACA of 2012. This decision affects only the “Super DACA” announced in November 2014.
Can new DACA applicants apply for the “old” DACA?
Yes. New applicants who turn 15 can and should apply for the existing DACA program. The benefits are enormous and the risks relatively insubstantial. See other articles on my blog on eligibility requirements for the DACA program.
What can I expect out of either party’s candidate winning the election?
Hillary Clinton, the Democratic candidate has stated she will continue the DACA program. Republican candidate, Donald Trump has expressed that he will overturn DACA.
It is not known who will become the US President in the November 2016 elections. Therefore, to have valid DACA status before the election could give a beneficiary the right to legally challenge any executive order overturning DACA, if that becomes necessary. Hence, my advice to apply for DACA if you qualify. With a new president, the DACA program may be terminated.
Are there any other options?
I have discussed many options on my blog, including waivers, the original DACA program, Deferred Action, and Adjustment of Status through US citizen relatives or through employment. Please take some time to read these various articles and familiarize yourself with the various strategies that are available.
Of course, immigration is a very complex matter and no two cases are the same. Therefore, please do consult with a qualified immigration attorney who can guide you as to your best options.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.