Obama Appeals to Supreme Court to Salvage Immigration Action


By Roy Maurer November 10, 2015

The White House announced Nov. 10, 2015, that it will appeal an appellate court’s decision blocking the president’s proposed policy allowing millions of undocumented immigrants the ability to apply for work permits and pardons from deportation.

The Department of Justice announced that it will ask the U.S. Supreme Court to review the Fifth Circuit Court of Appeals’ decision in Texas v. United States ruling against the Obama administration’s proposed Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action for Childhood Arrivals (DACA) programs.

The Fifth Circuit panel ruled Nov. 9, 2015, by a 2-1 vote that the immigration policy reforms violated procedural rules and lacked legal authority. A preliminary injunction filed early in 2015 halted DAPA from taking effect; this decision continues block the order.

“The [Immigration and Nationality Act] flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” Judge Jerry E. Smith wrote for the majority.

Judge Carolyn Dineen King dissented, arguing that the deferred action program was an “exercise of prosecutorial discretion” beyond judicial review.

According to Paul Virtue, a partner with law firm Mayer Brown, the Fifth Circuit’s decision should have come as “no surprise, not only because of the 5th Circuit’s reputation as a conservative court, but because the standard of review was a very high burden for the United States to satisfy.”

However, he added that, “With the end of the administration only fourteen months away, seeking Supreme Court review of this decision to allow the DAPA program to proceed was likely as well.” If the high court grants review, the case could be heard next Spring and decided by July 2016.

Debbie Smith, general counsel for the Service Employees International Union expressed disappointment with the ruling but stated that the “silver lining is that we will able to present arguments to the Supreme Court, where we are convinced that it will allow the executive action to go forward.”

Karen Tumlin, legal director for the National Immigration Law Center described the ups and downs of the president’s signature action on immigration an “absolute whirlwind” and the Fifth Circuit’s ruling “a myopic, distorted view of federal immigration law.” She stressed that time is of the essence but that if the Supreme Court issued a decision in late June or July 2016, the Obama administration would still be able and willing to implement the programs.

DAPA and DACA are among the central elements of President Obama’s executive action on immigration. Announced Nov. 20, 2014, the president’s actions would have allowed almost half of the nation’s estimated 11-12 million undocumented immigrants three years of deportation relief and work authorization. While experts agreed that U.S. employers would benefit from a suddenly larger labor pool, HR was cautioned to be very careful to ensure compliance with employment verification requirements during the implementation period. Employers would be caught between a rock and hard place, as “they have to be final arbiters on what the law is when employees present themselves as undocumented,” David Grunblatt, partner and head of the Immigration & Nationality Group at law firm Proskauer told SHRM Online when the action was announced.

Under DAPA, undocumented parents of U.S. citizens and legal permanent residents would be able to legally live and work in the U.S. for a period of three years, if they have lived in the country for at least five years, since Jan. 1, 2010. Industries such as agriculture, food processing, construction and landscaping would be hugely impacted, experts agreed.

The expanded DACA program, started in 2012 for younger immigrants, would be revised to provide three years of relief instead of two and the cutoff date for eligibility would be moved from June 15, 2007 to Jan. 1, 2010.

The White House estimated about 270,000 people would qualify under the expanded DACA program, bringing the total number of people eligible for that program to about 1.5 million.

The enforcement mechanism to keep undocumented workers out of the workforce would remain unchanged, however, creating uncertainty during the program’s implementation time frame. Federal immigration enforcement officers were to be given new instructions about who they should target for deportation and who they shouldn’t, but until work authorizations are processed for eligible beneficiaries, employers would have to maintain vigilance about not employing people that lack the legal right to work. And more than half of undocumented workers currently in the country would still not be covered under the deferred action.

At the time of the programs’ announcement, Angelo Paparelli, a partner in the business immigration practice group at Seyfarth Shaw told SHRM Online that the most glaring omission involved “the lack of any discretionary deferral of enforcement against employers who become aware that employees are eligible for or have applied for DAPA benefits.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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