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What the Supreme Court’s Split Decision on DAPA/DACA Means for Immigrants


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Sylvia Longmire IHSBy Sylvia Longmire
Contributor, In Homeland Security

On June 23, the Supreme Court came to a split decision on an immigration case that was largely overshadowed in the media by the British vote to exit the European Union, as well as another Court decision on affirmative action in Texas. Although that decision was made relatively quietly, the ramifications across immigrant communities in the U.S. will be huge, potentially affecting millions of individuals who may now face previously unlikely deportation proceedings.

The U.S. government currently has two programs that defer any deportation actions from being taken against specific groups of immigrants who are living in the U.S. illegally.

  • Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA): This program protects unauthorized parents of children who are U.S. citizens or legal permanent residents born on or before Nov. 20, 2014 from deportation. To qualify, parents must have been in the United States since Jan. 1, 2010.
  • Deferred Action for Childhood Arrivals (DACA): This program protects unauthorized immigrants born after June 15, 1981 who were brought to the United States before their 16th birthday and have been in the country since June 15, 2007 from deportation. DACA was recently extended to cover children who have been in the U.S. prior to January 2010.

In addition to preventing approximately four million qualified immigrants from being deported, the DAPA program in particular authorized approved applicants to apply for work permits.

Obama’s Executive Orders: DACA and DAPA

The reason why DACA and DAPA are so contentious is because both programs were established by presidential executive order and not by congressional action. A federal district court in early 2015 issued an order to block the initiatives from going forward while the legal case proceeded. An appeals court affirmed the ruling and added a broader one, saying that the program also exceeded Obama’s statutory authority. Because the Supreme Court split the decision 4-4 (due to one judge’s recusal), the case gets remanded back to the highest appeals court and that decision is upheld. The ruling will not affect the millions of so-called DREAMers who already benefit from DACA guarantees provided in 2012; it will only block new applicants from applying for a similar initiative to expand DACA and shield parents of U.S. citizens under DAPA.

The decision is a victory for conservatives who are angered by Obama’s use of executive authority to sidestep a Congress that has languished in gridlock over immigration reform, and for those who wish to see all illegal immigrants deported regardless of their personal situations. However, the ruling has been a hammer blow to immigrant families who had started to gain a sense of security under one of the two initiatives.

Ongoing Immigration Enforcement

Despite the Supreme Court’s decision and the enactment of the appeals court ruling, little will likely change in how immigration enforcement and deportation actions are carried out. The vast majority of immigrants protected under DACA and DAPA are a low priority for a personnel- and resource-strapped Immigration and Customs Enforcement (ICE) agency. Obama and Department of Homeland Security Secretary Jeh Johnson have emphasized that ICE will seek to first identify and deport illegal immigrants who have criminal histories and/or pose a security threat. But despite these reassurances, immigrants are nervous; more illegal immigrants have been deported under Obama’s watch than any other U.S. President.

This case could still go back in front of the Supreme Court once a ninth judge has been approved by Congress. However, election year tactics and political maneuvering on Capitol Hill may cause serious delays in that process, leaving no clear timeline for determining the ultimate fate of DAPA and DACA—or any other comprehensive immigration reform initiatives. Until then, immigrants living illegally in the U.S. will continue to hold their breath and watch over their shoulders until government gears start turning again.