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The U.S. Supreme Court recently upheld the ban on implementing President Obama’s two major immigration initiatives. The case, U.S. v. Texas, challenged the expansion of Deferred Action for Childhood Arrivals (“DACA”) and the introduction of Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). The lower courts had blocked these two initiatives, and the Supreme Court affirmed.

What are DAPA and Expanded DACA?

DAPA and the expansion of DACA were immigration initiatives that President Obama announced through an executive action on November 20 and 21, 2014. However, Texas and several states sued in federal court to stop the implementation of DAPA and the expansion of DACA. The government lost in both the lower federal court and the Fifth Circuit Court of Appeals. The government appealed to the U.S. Supreme Court, resulting in this final decision on June 23, 2016.

The DAPA program would have given work authorization for three years to the parents of U.S. citizens and lawful permanent residents who did not have lawful immigration status. It also would have deferred any removal action against these individuals. Under the expansion of the DACA program, individuals unlawfully present could qualify for work authorization and deferred action of removal regardless of their current age so long as they were brought into the US before they turned 16 and had lived continuously in the U.S. since January 1, 2010.

Together, the DAPA and DACA Expansion programs would have potentially helped up to 4 million out of the estimated 11 million individuals who are unlawful present in the United States with obtaining work authorization and deferring their deportation.

What about the original DACA program?

U.S. v. Texas does not affect the original DACA program that took effect on August 15, 2012. Under this program, individuals unlawfully present in the US who had come to the U.S. before the age of 16 and were under 31 years old on June 15, 2012 can obtain work authorization and deferred action of removal in two-year increments. They also must have completed high school, obtained a GED or been honorably discharged from the Coast Guard or armed forces, and have no serious criminal offenses. It should be noted that deferred action does not provide lawful immigrant status. It simply means the person will not be subject to any removal proceedings in two-year increments.

What next? Is there any hope for immigration reform?

Procedurally, the case will now go back to the lower courts. The outcome is difficult to predict as it will depend on how the US government and the federal judges will respond. When the U.S. Supreme Court has a tie vote, no legal precedent has been set. Also, because the decision was merely an affirmation of a split vote, neither the lower courts or government has any insight into the reasoning of the Supreme Court justices and what to address.

Nevertheless, since the case has been referred back to the lower courts, any decision on the merits of the case can be appealed again by the losing party to the Supreme Court, resulting in another review of the President’s executive power to create these initiatives. This is a long process that can take several years. During this time, unfortunately, these initiatives will not be implemented.

As to whether there is any sensible and meaningful immigration reform on the horizon, the real answer will have to wait for the outcome of the November elections. Stay tuned.