On June 23, 2016, the U.S. Supreme Court deadlocked in a 4 to 4 split in the long-awaited case, United States v. Texas, effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The original DACA program remains in place.
The decision was just nine words long: “The judgment is affirmed by an equally divided court.”
The case, United States v. Texas, No. 15-674, concerned a 2014 executive action by the president to allow as many as five million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
The court did not disclose how the justices had voted, but they were almost certainly split along ideological lines. Administration officials had hoped that Chief Justice John G. Roberts Jr. would join the court’s four-member liberal wing to save the program.
The case hinged in part on whether Texas had suffered the sort of direct and concrete injury that gave it standing to sue. Texas said it had standing because it would be costly for the state to give driver’s licenses to immigrants affected by the federal policy.
Chief Justice Roberts is often skeptical of expansive standing arguments. But it seemed plain when the case was argued in April that he was satisfied that Texas had standing, paving the way for a deadlock.
White House officials had repeatedly argued that presidents in both parties had used similar executive authority in applying the nation’s immigration laws. And they said Congress had granted federal law enforcement wide discretion over how those laws should be carried out.
But the court’s ruling may mean that the next president will again need to seek a congressional compromise to overhaul the nation’s immigration laws. And it left immigration activists deeply disappointed.
In their Supreme Court briefs, the states acknowledged that the president had wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.
In response, Solicitor General Donald B. Verrilli Jr. told the justices that this “lawful presence” was merely what had always followed from the executive branch’s decision not to deport someone for a given period of time.
Speaking at the White House, President Obama described the ruling as a deep disappointment for immigrants who would not be able to emerge from the threat of deportation for at least the balance of his term.
“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system,” he said. “It is heartbreaking for the millions of immigrants who have made their lives here.”
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Summary of Executive Action Obama Announced
Today, 11/20/2014, President Barack Obama announced broad executive action to offer temporary relief from deportation to millions of undocumented immigrants.
“If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation,”
The most controversial aspect of the president’s executive order allows as many as five million undocumented immigrants to stay in the U.S., including the undocumented parents of children born here. Those parents will be able to request deportation relief and work permits for three years at a time, provided that they register, pass background checks, pay fees, and prove that their legal resident or citizen child was born before the date of the executive order.
The plan also protects more so-called “DREAMers” — young immigrants brought to the United States illegally as children. Previously, individuals were eligible for deferred action if they were born after 1981 and entered the country before 2007. That date is expected to change to January 1, 2010, with no age limit.
Obama noted that the move would not grant undocumented immigrants citizenship or the right to remain in the country permanently. And he said that he will still push for a legislative solution
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While relatives of U.S. citizens often find a path to legal status, relatives of green card holders can also apply for a green card. If you are related to a permanent resident or green card holder, you might be eligible to petition for a green card.
A green card holder may apply for his/her spouse and children (unmarried, any age) to come to the U.S. legally. As a relative of a permanent resident, you will be placed in a category known as “family second preference”. Because the number of visas given out to family preference applicants annually is limited, you will be placed on a wait list. When a visa number is available, it will be assigned to you.
If you are in the U.S., the process of applying for a visa will be the same as that of relatives to U.S. citizens. If you are already in the U.S., your relative must file Form I-130. When it is approved, you must wait until the priority date in the family preference category becomes current. The priority date is the date when the I-130 is properly sent. When it becomes current, you can file the I-485 which will allow you to adjust your status. Eventually, the adjustment process will result in your status as a permanent resident.
For the most part, the application process must be completed by the green card holder. First, he/she must file Form I-130 and provide USCIS with proof of his/her status as a legal permanent resident. Documents and evidence of the relationship between the green card holder and immigrant must also be included. Examples of evidence include birth and marriage certificates. If you and your family member do not share the last name, you must show proof of the legal name change. More specific details can be found on the forms that need to be filed.
If you are outside the U.S., you must undergo the process of consular processing. This type of processing occurs when USCIS works with the Department of State to issue a visa on an I-130 that has been approved. When the Department of State issues you the visa, you can travel abroad and will become a permanent resident when you enter the U.S.
Many families are under the impression that an approved I-130 means that an applicant has been granted a benefit or change in status. This is not true. If USCIS accepts and approves the visa petition, it means that you are now in line for a visa number. If you belong to a first preference category, you will be issued a visa right away. If not, there will be a longer wait.
If you have any questions about preference categories, the process of becoming a U.S. citizen, or how to obtain a visa, please contact Immigration Attorney Phillip Kim.