Equally Divided Supreme Court Upholds Preliminary Injunction Against DAPA Implementation

UNITED STATES V. TEXAS AND THE 2016 ELECTION INTRODUCTION

On June 23, 2016, the Supreme Court issued its much-anticipated decision regarding the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program. In United States v. Texas, 579 U.S. ___ (2016) [PDF version], an equally divided Supreme Court (4-4) affirmed the judgment of the Fifth Circuit that left in place a district court injunction against the implementation of the President's initiatives. In this post, I will discuss the background of the case and what the Supreme Court's decision means going forward.

BACKGROUND

I have discussed the litigation surrounding the DAPA Program [see blog] on this blog. The following are the posts that I wrote on the subject:

1. Fifth Circuit Upholds Preliminary Injunction Against DAPA [see blog]
2. Obama Administration Petitions to the Supreme Court [see blog]
3. The Supreme Court Grants Review [see blog]

President Barack Obama and Secretary of Homeland Security Jeh Johnson announced several immigration “executive actions” in late 2014 [PDF version]. Among these executive actions were the DAPA Program and an expansion of the DACA.

Texas, joined by 25 other states, filed a lawsuit in federal district court seeking an injunction against the implementation of the DAPA Program and the expansion of the DACA Program. Texas made three arguments in support of its position:

1. The Administration violated the Administrative Procedure Act (APA) by not subjecting the programs to notice and comment rulemaking.
2. The Department of Homeland Security (DHS) did not have the authority to implement the programs under the Immigration and Nationality Act (INA).
3. The President abrogated his constitutional duty to “take care that the laws be faithfully executed.”

The District Court granted a preliminary injunction on the basis that Texas was likely to prevail in its first argument that the implementation of DAPA and the DACA expansion violated the APA [PDF version]. On appeal, the Fifth Circuit upheld the preliminary injunction and, in so doing, also found that Texas was likely to prevail in its second argument, that the Department of Homeland Security (DHS) did not have the authority to implement the programs under the INA [PDF version].

In seeking review by the Supreme Court, the Administration argued that the DAPA Program and DACA expansion were not subject to the APA and were within the President's authority under the INA. Furthermore, it argued that Texas and the other states did not have standing to sue. The Supreme Court requested that the parties provide briefing on Texas' third argument-that the President violated the “take care clause” of the United States Constitution.

SUPREME COURT DECISION

The Supreme Court's decision in United States v. Texas, 579 U.S. ___ (2016) [PDF version], was, so to speak, anticlimactic. Since the death of former Justice Antonin Scalia [see blog] last February, the Supreme Court has been operating with only eight Justices instead of nine. Under these circumstances, in the event that the Justices split 4-4, a decision of the lower court is. That is exactly what ended up happening in United States v. Texas. Moreover, because the Court deadlocked, we do not even know which Justices fell on each side of the split, much less their reasoning.

WHAT HAPPENS NOW?

Because the judgment of the Fifth Circuit was affirmed by an equally divided court, the preliminary injunction issued by the District Court against the implementation of DAPA and the DACA expansion stands. The case will presumably return to the District Court for a decision on the ultimate merits.

Given the content of the District Court decision and the Judge's subsequent claims that the government misled the court with regard to its implementation of the programs, it seems more likely than not that the District Court will strike down DAPA and the DACA expansion. However, we must note first that this is not assured and, second, that even if the District Court strikes down the programs, it is unclear whether it will do so merely for violating the APA or additionally because it finds that the programs exceed the President's authority under the INA.

Interesting, the District Court Judge, Andrew Hanen, has accused Justice Department lawyers of misleading the Court with regard to the government's implementation of the programs. Judge Hanen issued several controversial orders in response to the alleged misrepresentations of government lawyers, some of which have been challenged. Judge Hanen will hold a status conference with Justice Department lawyers on August 22.[1] At that time, we may have a better idea of how the case will proceed.

Regardless of the decision, the losing side will be able to appeal the decision to the Fifth Circuit (and subsequently seek review from the Supreme Court). Furthermore, the government may seek rehearing by the Supreme Court.

For all intents and purposes, this means that President Obama will be unable to implement DAPA and the DACA expansion (however, the main DACA program from 2012 is unaffected) during the final months of his term in office. It is unlikely that the issue will be fully resolved until 2018, at the earliest.[2]

WHAT DOES THIS MEAN IN THE SHORT TERM?

The Supreme Court decision merely maintains the status quo. Except for limited cases where the DHS erroneously issued employment authorization documents under the new immigration initiatives, neither DAPA nor the DACA expansion was ever implemented before the injunction. A person who would have been eligible to benefit under one of the enjoined initiatives should consult with an experienced immigration attorney for a full and individualized assessment of his or her immigration situation. Depending on the unique facts of each case, some individuals who would have been eligible to benefit from the implementation of DAPA may be eligible for other forms of immigration relief.

CONCLUSION

Ideally, the Supreme Court would have found that the President exceeded his authority under the APA and under the INA in endeavoring to implement DAPA and the DACA expansion. Such a decision would have created important precedent that would prevent the President from creating binding rules without following the procedures set forth in the APA and would have prevented the President from exceeding the statutory authority provided to the executive branch in the INA.

However, short of that outcome, the 4-4 split in the Supreme Court was an acceptable outcome. The decision affirms the Fifth Circuit's decision to uphold the preliminary injunction, and it sets the stage for the lower courts to strike down the President's initiatives on the merits.

The fate of these programs will be decided not only by the courts, but also by the voters in the November elections. To read my post about what the United States v. Texas decision means for November, please see my blog. Regardless of the outcome of the election, I hope that the next President abandons the current administration's approach of creating binding rules by executive fiat and instead endeavors to work with the next Congress in crafting new statutes that will make permanent improvements to our immigration system. It is my hope that the next President recognizes that a failure to reach an agreement on new legislation does not confer upon the executive the power to create new rules and programs without respect for procedural regularity and statutory restrictions.

I look forward to writing more about the election and its effect on immigration law in my series of blog posts on the subject [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Lyle Denniston, Opinion analysis: Obama immigration plan all but doomed, SCOTUSblog (Jun. 23, 2016), available at http://www.scotusblog.com/2016/06/opinion-analysis-obama-immigration-plan-all-but-doomed/
2. AILA FAQs on Supreme Court's Ruling in U.S. v. Texas, (Jun. 24, 2016), available at AILA Doc. No. 16062436

Lawyer website: http://myattorneyusa.com

USCIS to Begin Deactivating E-Verify User IDs That Have Not Been Accessed for 270 Days

Beginning on August 1, 2016, the United States Citizenship and Immigration Services (USCIS) will begin deactivating E-Verify user IDs that have not been accessed for 270 days [PDF version].[1] In order to avoid deactivation, E-Verify users should log in to their accounts at least once every 270 days.

The news release lists three steps that corporate administrators and Program Administrators should take before August 1, 2016:

• Log in to E-Verify before August 1 if they have not accessed E-Verify for 270 days.
• Review all E-Verify user IDs for their company account in order to determine if E-Verify access is still required for those users.
• Terminate any active E-Verify user IDs that no longer need access to E-Verify.

Questions regarding the E-Verify system may be directed to USCIS [link current as of June 18, 2016]. Employers should consult with an experienced immigration attorney for guidance on issues regarding the E-Verify system and employing nonimmigrant and immigrant workers in general.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. AILA Doc. No. 16061704 (Jun. 17, 2016)

Lawyer website: http://myattorneyusa.com

USCIS Releases Updated Edition of Form I-131

On June 8, 2016, the United States Citizenship and Immigration Services (USCIS) posted an updated edition of the Form I-131, Application for Travel Document [PDF version].[1] The new edition of the Form I-131 is dated May 3, 2016. However, USCIS has stated that it will still accept the editions of the Form I-131 dated January 22, 2016, and March 22, 2013.

The Form I-131 is used to apply for a:

• Reentry permit;
• Refugee travel document;
• Advance Parole Travel Document; or
• To apply for an Advance Parole Document from outside the United States in order to seek parole in the United States due to urgent humanitarian reasons or for significant public benefit. “Significant public benefit” includes applicants under the Cuban Family Reunification Parole Program [see article], the Haitian Family Reunification Parole Program, and the Filipino WWII Veterans Parole Program (FVWP) [see article and blog].

An experienced immigration attorney will be able to provide assistance in immigration issues involving reentry permits, refugee travel documents [see article], advance parole [see article], humanitarian parole [see article], or the specific parole programs that the Form I-131 may be used to request benefits under. Please also see our article about parole-in-place for family members of military service members and veterans [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. AILA Doc. No. 16060805 (Jun. 8, 2016)

Lawyer website: http://myattorneyusa.com

Comparing the "Same or Similar" Final Memorandum to the Draft Memorandum

COMPARING THE FINAL “SAME OR SIMILAR” MEMORANDUM TO THE DRAFT MEMORANDUM

On March 18, 2016, the United States Citizenship and Immigration Services (USCIS) released a final Policy Memorandum (“Final Memo”) setting forth the rules regarding the “same or similar” occupational classification requirement for exercising section 204(j) I-140 petition portability [PDF version]. We work through the Final Memo on site [see article]. In a separate article [see article], we examined the Draft Memorandum (“Draft Memo”) [PDF version] on the issue released on November 20, 2015. In that article, we discussed at comments submitted by the American Immigration Lawyers Association (AILA) regarding the Draft Memo [see comments]. In this post, I will revisit our article on the Draft Memo and examine how AILA's comments and suggestions fared in the Final Memo.

1. STANDARD OF PROOF: PREPONDERANCE OF THE EVIDENCE

AILA supported the statement in the Draft Memo that an applicant for section 204(j) portability [see article] need only establish that he or she is eligible by a preponderance of the evidence (meaning that the applicant is more likely eligible than not). The Final Memo retains the same language.

2. USE OF STANDARD OCCUPATIONAL CODES

AILA recognized that “the SOC represents a reasonable framework for this type of analysis.” However, AILA cautioned against overreliance on the SOC because the system was not established for the purpose of determining the level of similarity between two jobs. AILA asked USCIS to acknowledge limitations of the SOC for portability purposes in the Final Memo.

The Final Memo does not directly address “inappropriate SOC codes” assigned in labor certification. In fact, it does not provide any avenue for an applicant to argue that an SOC code assigned in labor certification was inappropriate. It also does not address a situation in which the SOC code assigned to the original petition no longer exists. The Final Memo acknowledges “catch-all” classifications, but only in the aspect that adjudicators “should carefully review the evidence to determine that [two positions with the same catch-all classification] are in the same or similar occupational classification.”

3. MATCHING DETAILED OCCUPATIONAL CODES

AILA asked USCIS to state in its Final Memo that when two positions have “matching detailed occupational codes,” there should be a “presumption that 204(j) portability has been established…”

The Final Memo does not go quite that far, instead stating that “[s]uch positions will generally be considered to be in the same occupational classification unless, upon review of the evidence presented and considering the totality of the circumstances, the preponderance of the evidence indicates that favorable treatment is not warranted.” The Final Memo retains a footnote explaining that if two occupations are in the same catch-all classification, further investigation is warranted to determine whether they are in the same or similar occupational classification.

4. DIFFERENT DETAILED OCCUPATIONAL CODES WITHIN THE SAME BROAD OCCUPATION

AILA supported the Draft Memo's language that a review of the “totality of the evidence” is appropriate for determining whether two positions within the same broad occupation are similar for section 204(j) purposes. The same standard is used in the Final Memo.

5. CAREER PROGRESSION AND “OTHER VARIATIONS”

AILA supported the Draft Memo's language regarding career progression. The Final Memo retains the standards from the Draft Memo.

6. DIFFERENCES IN WAGES

AILA argued that differences in wages should not be considered in determining whether two positions are in the same or similar occupational classification. The Final Memo did not adopt this position, instead retaining the language that differences in wages should be considered along with all other relevant evidence.

However, AILA requested that a footnote stating that “[A]n increase or decrease in pay may not be dispositive” be changed to “is not.” The Final Memo changed the footnote to state that “An increase or decrease in pay, in and of itself, is not dispositive.”

7. ADDITIONAL COMMENTS

AILA advocated for the Final Memo including language that the Dictionary of Occupational Titles (DOT)/O*NET may be used in section 204(j) adjudications. The final Memo includes this language in a footnote.

AILA asked that the Final Memo include a paragraph confirming that self-employment is permitted. The Final Memo includes self-employment in a sentence in the Memo and states unequivocally in a footnote that an applicant may port to self-employment.

AILA requested that sentence be included in the Final Memo that states that geographic location is not relevant for section 204(j) portability purposes. The Final Memo notes on multiple occasions that an applicant may port to a position in a different geographic location than the original job offer.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com