When Republicans succeeded in blocking President Obama’s initiative to legalize the status of as many as 4 million undocumented immigrants, they thrust the issue into the 2016 presidential campaign. That may not be welcomed by most GOP candidates, except perhaps Donald Trump.
Immigrants who hoped to legalize their status under the president’s plan were forced by a Texas court injunction issued in February to wait for legal challenges to the president’s initiatives to play themselves out. The issue could very well end up at the Supreme Court in the midst of the election.
“We’re headed to the Supreme Court, not matter what happens,” said Douglas Penn, an immigration attorney in Stamford, CT. He says his clients are disheartened and confused by the turn of events. “It puts all of us in limbo. A lot of people feel they had hope and it’s been yanked out from under them.”
In November, Obama announced a long-expected immigration plan that would allow the parents of children who are U.S. citizens or residents to apply for a new program that would defer their deportation for three years at a time. The new deferral program, known by the acronym DAPA, would also allow qualified immigrants to work.
Program applicants must have passed criminal background checks, have been in the United States for at least five years, and have paid their share of taxes. Obama said he took these steps because Congress failed to act on a comprehensive immigration bill. But Republicans criticized the plan as an illegal overreach and 26 Republican governors challenged it in court. A conservative federal judge in Texas sided with those GOP governors and issued an injunction.
Katia and Kiara Ruesta, 18-year-old twin sisters who are undocumented, were on the verge of applying for provisional legal status before the Texas injunction put their hopes on hold. The twins, who came to the U.S. from Peru with their parents when they were 13 years old, hoped to benefit from Obama’s expansion of a program giving temporary legal status to undocumented immigrants who came as children.
The 2012 Deferred Action for Childhood Arrival (DACA) program allowed only those who entered the U.S. before 2007 to apply. Obama moved that date to Jan. 1, 2010 so the Ruestas (who arrived in December of 2009) were suddenly eligible – as were another 270,000 undocumented immigrants nationwide.
Countless others who had “aged out” of DACA because they were older than 31 or came after a deadline of June 2007 would have also been able to legalized their status under the president’s plan. The rules were changed so individuals who were brought to this country as children could apply if they entered before January 1, 2010, regardless of how old they are today. Katia Ruesta thinks the courts will back the president’s actions before Obama leaves office. “I am pretty confident that it’s just a matter of time for us to be able to file,” she said.
The Obama administration appealed the Texas federal court’s injunction to the New Orleans-based 5th Circuit Court of Appeals. But whatever that conservative-leaning court decides, the issue is likely to be appealed to the Supreme Court. Especially since the more liberal D.C. Circuit has heard an appeal by Joe Arpaio, the immigrant-hunting sheriff of Arizona’s Maricopa County, to a lower court’s dismissal of his challenge against the president’s action.There could be a split decision in the federal appeals courts that would put pressure on the Supreme Court to act. The legal maneuvering could well eat up the rest of President Obama’s second term in office.
Meanwhile, Doug Rivlin, spokesman for Rep. Luis Gutierrez, D-Ill., said “we’ve been telling people that being able to hold together all of your documents is a smart idea.” That’s because Obama initiated another policy that wasn’t stopped by the court injunction that directs U.S. Immigration and Customs Enforcement, (ICE,) to limit deportation to criminals and others who would not qualify for legal status under his now-stalled immigration initiatives. Rivlin said having proof that you would be eligible for relief under the president’s plan, even if it has been put on hold, can save an immigrant from deportation: “Our sense is that the pattern of who is getting deported is more and more criminals and less people who have deep roots in the community.”
Douglas Penn said Obama “made it very clear ICE should focus its efforts on criminals, national security threats, recent entrants and people with previous immigration violations.” Obama had earned the title of “deporter-in-chief,” because his administration had broken records in the number of deportations, more than 2 million. But now deportations are dropping. It’s estimated the Obama administration will remove 229,000 people from the country this year, a 27 percent drop from last year, and nearly 50 percent less than the all-time high in 2012.
Fewer people are also in the pipeline for deportation, and Homeland Security Secretary Jeh Johnson has ordered his officials to review all of the 400,000 cases in the nation’s swamped immigration courts — to eliminate those who don’t meet the new priorities.