Published July 7, 2016


In recent weeks, the U.S. Supreme Court announced in a one line order that it will let stand a lower court decision blocking implementation of President Obama’s most recent executive program on immigration.  In the case of U.S. v. Texas, the eight member Supreme Court (with Justice Scalia’s recent death and his seat left unfilled) in a 4-4 decision simply stated, “(t)he judgment is affirmed by an equally divided court”, upholding lower court decisions and effectively putting a nail in the coffin on President Obama’s immigration initiative known as “Deferred Action for Parents of Americans and Lawful Permanent Residents”, or “DAPA”.   As previously discussed here, DAPA would have allowed approximately 5 million undocumented individuals access to employment authorization and a shield against deportation proceedings.  Below are answers to the most common questions on this topic.

What legal issue was before the U.S. Supreme Court?

At issue were far reaching constitutional principles which are bigger than this particular legalization program.   With their order, the U.S. Supreme Court let stand lower court decisions which confirm that states, such as Texas or the 24 other states that brought the underlying class action lawsuit, have “standing” to challenge the legality of President Obama’s immigration initiative.  In blocking the implementation of the program, the courts confirmed that the plaintiff states, including Texas, could very well be negatively impacted and overly burdened by the President’s initiative, specifically, for example, with regard to the costs to the states of administering expanded Department of Motor Vehicle programs to accommodate a pool of new drivers, potentially in the millions.


Do the undocumented who would have benefitted under DAPA, or the undocumented population in general, now face a greater risk of deportation?

No, not necessarily.   First, each of the 12 million undocumented individuals residing in the U.S. here continue to have the right to “due process” under the law and to defend against removal proceedings should they need to.    Second, while an undocumented person is by definition “removable” for being present in the U.S. in violation of our immigration laws, the current administration, like other recent administrations,  is not focusing much, if any, effort on initiating removal proceedings against the “non criminal” undocumented.   Further, for those who happen to already be in removal proceedings and facing deportation, the current administration is open to considering the exercise of “prosecutorial discretion” and putting a halt to proceedings against non criminals or other non-priority segments of the undocumented population.

Will there ever be a path to legalization for the undocumented population?

Yes.   Sooner or later the U.S. Congress and our President will get on the same page to advance legislation that creates a path to legalization for the segment of our undocumented population that is otherwise law abiding.    The practicality and effectiveness of an initiative to round up and commence removal proceedings against a population of 12 million individuals will ultimately be assessed in a realistic light and rejected as the proper remedy to our nation’s immigration problem.   In the meantime, the state of our nation’s immigration system and undocumented population will continue to be exploited for political gain by attention hungry candidates and as a talking point for loud mouthed, sound byte oriented, law and order rhetoric. 


PUBLISHED July 7, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois