October 21, 2015

By Pamela Chan

“It’s kind of a term of sequels,” said appellate lawyer John Elwood of this year’s Supreme Court term. “There are many cases or questions presented from past terms … that weren’t decided the first time, and they’re back now to be answered, hopefully, this upcoming term.”

One issue still in need of resolution concerns immigration, specifically President Obama’s action to defer the deportation of undocumented youth and the parents of U.S. citizens and legally permanent residents. Although the court has not taken a specific case as of yet, many expect the court to consider the issue at some point during the term.

In 2002, Congress specifically gave the President authority to enforce certain immigration laws concerning undocumented people through the Homeland Security Act of 2002. Under that authority, the Department of Homeland Security (DHS), which oversees all immigration enforcement, announced a major policy change last November allowing longtime residents whose children were citizens or lawful permanent residents the ability to apply for temporary reprieve from deportation, upon individual case-by-case reviews. The new policy is called the Deferred Action for Parental Accountability (DAPA) program.

The department also clarified its priorities, stating that it would focus its deportations on specific classes of undocumented immigrants including those who were national security threats, convicted felons, or gang members.

A federal district judge initially issued an injunction, challenging Obama’s executive orders as unlawful and putting the new rules on hold. The injunction centered on the President’s right to grant quasi-legal status and work permits to millions of immigrants who entered the U.S. illegally as children. Though there is no case currently before the Supreme Court, many immigration experts believe a case may soon come up.

Any immigration case that comes before the court has the potential to affect large numbers of young people: from the Deferred Action for Childhood Arrivals (DACA) beneficiaries who are able to work and live without fear of deportation to the young people who would be granted relief from the fear of their parents getting deported through DAPA. The Migration Policy Institute estimates that, as of 2014, 1.5 million undocumented youth were eligible for DACA and 3.7 million parents may be eligible for DAPA.

It is unclear, however, whether that fight will get to the justices in time for a decision this term or whether Obama’s effort to expand his executive actions on immigration will remain blocked by a lower court order until he leaves office.

As the Fifth Circuit continues to consider the Obama Administration’s appeal, millions of young people hang in the balance. Given the importance of the issue, it seems very likely that the deferred action program will finally get its time of day in court, no matter the court’s ultimate decision.

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