With the Supreme Court deadlocked over United States v. Texas, the lower appeals court ruling upholding an injunction against DAPA and Expanded DACA remains in place. The decision, unfortunately, effectively stymies any progress on immigration for the duration of the Obama administration, leaving millions of undocumented aliens frustrated and disappointed. While the ruling is disheartening, it is important to place it within its proper context. Especially for those affected by it, it is important to understand what the decision means and does not mean.
For one thing, the decision affects only the DAPA and Expanded DACA Executive Actions. The original DACA program remains intact and unaffected. Furthermore, as President Obama addressed during his public response to the decision, it does not alter the current Enforcement Memo that is currently in effect. This is important because the 2014 memo, titled “Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants,” lays out whom enforcement efforts should be directed against. Fortunately, the vast majority of people who would have benefited from DAPA and Expanded DACA are the same group of people that would not be considered priorities for removal. So while the decision frustrates the ability of these people to affirmatively apply for protection from removal, it does not necessarily expose or make them into greater targets for apprehension.
What options remain?
For those who still wish to file affirmative applications with the government to fix their status, there may still be some options available. For some, the provisional waiver process may need to be reconsidered. Notwithstanding the decision, the I-601A program is an administrative regulation that remains fully in effect, and there may be changes in the future that may broaden the classes of people who may eligible to apply. Others who have outstanding removal orders may need to evaluate the viability of reopening their cases to seek relief. Still, many others, if they have not already, may need to file Freedom of Information Act Requests to obtain copies of their immigration file so that they can consider their options.
While this development is profoundly disheartening, it does not necessarily mean the death toll of immigration reform. Certainly, the next President as well as the eventual appointment of a Ninth Supreme Court Justice will have a tremendous impact on immigration and determine the course of reform for the next decade.