Immigration Reform: Where are we today?

Maria del Carmen Ramos
Maria del Carmen Ramos

On April 18, 2016, the United States Supreme Court will be on the verge of deciding an immigration case that could not only have a profound effect on our immigration policy but on the limits of a president’s powers, as well. As background, President Obama issued a series of executive actions on immigration on November 20, 2014, which, among other things expanded eligibility for “deferred action.” “Deferred action” is a regular practice in which the Secretary of Homeland Security—currently Jeh Johnson—exercises his or her discretion to refrain from removing particular aliens from the United States for humanitarian reasons or convenience. Aliens who have been accorded deferred action status are eligible to receive work authorization and federal benefits. As part of his executive actions, President Obama announced that the Department of Homeland Security (DHS) grant deferred action status—i.e., not deport—the parties of U.S. citizens and lawful permanent residents. That executive action program is known as Deferred Action for Parents (DAPA).

Two weeks after President Obama announced his executive actions, twenty-six stated sued the federal government in federal court in Texas to enjoin DHS from implementing the DAPA program. Those states alleged that DAPA, and President Obama’s other executive actions, were unconstitutional because they violated the Take Care Clause of Article II, section 3 of the U.S. Constitution; were arbitrary and capricious under the Administrative Procedures Act (APA); and were not adopted through the APA’s notice-and-comment procedures. The district court entered a nationwide injunction enjoining DHS from implementing the DAPA program because DAPA was a substantive change of law that required DHS to comply with the APA’s notice-and-comment procedures.

On November 9, 2015, the Fifth Circuit Court of Appeals affirmed the district court. The government had sought a stay of the injunction pending appeal, which, had it been granted, would have meant DHS could have implemented DAPA while the appeal was pending. But the Fifth Circuit declined to stay the injunction. Given that, the government sought expedited review by the Supreme Court, and on January 19, 2015, the Supreme Court agreed to hear the case.

The Supreme Court’s decision to hear the case is significant because it will have a major impact on our immigration policy.  With the injunction in place, an estimated four million parents of U.S. citizens or permanent legal residents are subject to deportation and ineligible to work in the United States.  But the decision to accept review will have impact more than our immigration policy.

When the government petitioned the Supreme Court, it presented three questions for review: (1) whether the states had standing to challenge the executive action; (2) whether DAPA was arbitrary and capricious under the APA; and (3) whether DAPA was subject to the APA’s notice-and-comments procedures. The Court granted review on all three questions but, in an unusual move, added a fourth question—Whether DAPA violates the Take Care Clause of Article II, section 3 of the Constitution—which obligates the President to “take Care that the Laws be faithfully executed.”

It is likely, according to Court observers, that the Supreme Court will rule by the term concludes in June. Keep an eye out for what could be a bombshell decision.

Continue to check back with us for updates on the status of this important immigration issue. For more information, please contact Maria del Carmen Ramos at 813.227.2252 or

Originally published in the Hillsborough County Bar Association’s Lawyer magazine. The Lawyer magazine is an award-winning legal publication. Submissions cover current trends and cases that are at the forefront of legal discussions, as well as local legal events and items that are of keen interest to the legal community in the Tampa Bay area, Florida, and beyond.

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