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Will DAPA Be Obama’s Departing Legacy?

In mid-January of this year, the U.S. Supreme Court announced that it had granted cert to in United States v. Texas, meaning that it would consider the legal challenges, originally lodged by the state of Texas and many others, to President Obama’s November 2014 Executive Actions, including the Deferred Action for Parents of Americans (“DAPA”) which would provide work authorization and protection from deportation to about 5 million undocumented immigrants.  The specific issues in that case are (1) if a state has a right to sue the federal government if they are voluntarily providing a subsidy to aliens who would benefit from the deferred action program; (2) if the guidance in Obama’s Executive Action provisions are lawful; (3) if that guidance was subject to notice-and-comment procedures; and (4) if that guidance violates the Take Care clause of the US Constitution (Article II, Section 3).  The fourth issue was added by the Supreme Court itself, suggesting the likelihood of a broad and detailed decision affecting far more than immigration law and reaching out into presidential power generally. A decision will likely be issued by the end of June 2016.

If the Supreme Court decides against Texas Attorney General Ken Paxton and his coalition of 26 states, the Executive Actions could very well be carried out before the end of the year, and any new president will be forced to honor the policies as they stand when he or she comes into office (whether future changes can be made is a different matter, however). Indeed, the White House has stated publically that they intend to begin enrolling immigrants as soon as possible, and immigrants are likely to make haste in submitting their applications, given the political volatility of the program. Democratic presidential candidates have stated their intention to continue with the program while GOP candidates, predictably, have not.

The outcome of the case has undoubtedly been affected by Justice Antonin Scalia’s sudden passing on February 13, 2016.  The conservative judge was almost certain to come down on the side of Attorney General Paxton.  While his missing vote is helpful to the immigrant cause, his absence could result in an equally divided court. A 4-4 tie verdict from the Supreme Court results in an automatic affirmation of the lower court’s ruling.  In this case, the lower court favored the state challenge by a 2-1 split.  While there may be an additional recourse in under those circumstances – a formal request for a re-hearing after a 9th justice has been appointed – the political machinations surrounding a quickly approaching presidential election are certain to slow down or halt any Supreme Court appointments, and any hope for DAPA as President Obama intended it become speculative at best.  Indeed, a week ago Senate Republicans have sworn that they will not hold any confirmation hearings for a Supreme Court nominee selected by President Obama.  Of course, if five Supreme Court justices decide in the President’s favor and issue a positive decision this June, the DAPA program could likely become Obama’s departing legacy – and one of which he should be very proud.

Ignoring Alternatives & Increasing Detention of Families

Although the number of families being detained on the U.S.-Mexico border has dropped, the government is moving forward with plans to increase its capacity to detain families, with plans to open a new facility to house 2,400 women and children in Dilley, Texas, next month. Many of the women and children who would be housed in this facility are fleeing domestic abuse or gang violence. While Immigration and Customs Enforcement has the option of releasing individuals on bond or providing an ankle monitor, detention is clearly the preferred solution. Detention is not only an expense that falls on the shoulders of tax-payers; it also exposes detainees to the risk of sexual abuse. In fact, a complaint from earlier this month alleges recent sexual abuse in the Karnes City, Texas, facility, and other centers were previously closed after numerous allegations of abuse. Meanwhile, an alternative program from 2004 known as ISAP (Intensive Supervision Appearance Program) has proven to be widely successful, with 93% of participants showing up to their scheduled hearings on their own accord.

Bond determinations are made based on an assessment of an immigrant’s potential danger to the community and the risk that they will not attend their removal proceedings, but instead going into hiding. In many of these cases, women and children have come to this country seeking protection and have turned themselves in at the border. They have very few resources. The chance that they will post a bond and not attend future court hearings is highly unlikely. A denial of bond, or a very high bond, should be reserved for individuals with a criminal history who have already proven that they pose a danger to society, or that they are likely to not show up for a scheduled hearing.

Expense and risk are not the only issues that cause concern to many; detention in these remote facilities means less access to paid or pro bono legal services. Although detainees at the Artesia center are provided a list of pro bono services, the services listed are hours away and the detainees often have no means of contacting them. If they elect to hire private counsel, they will have to look elsewhere as well, as the nearest immigration attorney is approximately an hour away from the facility. Volunteer attorneys who have traveled to Artesia to offer pro bono services note that there is not even a business center in the town of Artesia where an attorney can make photocopies or send faxes.

In response to the proposed development of the Dilley facility, several prominent Democratic senators recently wrote a letter to the Secretary of Homeland Security. In that letter, found at, the senators wrote:

“The administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space. Concerns over flight risk can be ameliorated through Alternatives to Detention (ATD), which help ensure the appearance of asylum seekers in immigration proceedings and are more cost effective.”

From the outside, it certainly seems that inexpensive and humane alternatives are low on the administration’s priority list, and one can’t help but wonder why – or wonder what priorities are more important. Several Democratic senators, at least, are left wondering.

Immigrant Flood Victims Should Seek Assistance

Were you affected by the recent floods in Colorado? Even undocumented persons are eligible for federal and local assistance.

If your home and belongings were damaged or destroyed, you are eligible for assistance from the federal government through the Federal Emergency Management Agency (FEMA). Although people without immigration status do not qualify for cash assistance from FEMA, they can receive benefits in many other forms. FEMA is encouraging all flood victims, regardless of status, to register for assistance. If one member of the household is a citizen or a lawful permanent resident (LPR), the entire household may qualify for assistance from FEMA, since only one member of the household must be eligible for assistance. An attorney can assist you in determining if you qualify for FEMA assistance. To apply for more information on FEMA’s program, go to:

Other benefits available to undocumented persons include crisis counseling, disaster legal services, transportation, emergency medical care, food, water and other emergency supplies. Many large charities, including the Red Cross and the Salvation Army will also assist any victim of the floods without revealing their immigration status. You can receive medical assistance, food and supplies from these and other organizations.

If you are an immigrant and flood victim in need of legal services, free legal assistance is available through Colorado Flood Legal Relief.  Aretz & Chisholm Immigration has offered their legal services through this non-profit effort. For assistance, you may contact the hotline at (855) 424-5347 or request help online::

For more information on the situation of immigrants affected by recent flooding, see

TPS Re-Registration Periods Closing Soon

Temporary Protected Status (“TPS”) is currently available to nationals of the following designated countries: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.  TPS has been extended for Syria and El Salvador, and the re-registration periods are closing soon. Re-registration for El Salvador ends July 29, 2013, and TPS protection has been extended through March 9, 2015. Re-registration for Syria ends August 16, 2013, and TPS protection has been extended through March 31, 2015. Please keep in mind that continuous presence dates have changed, and the last day for initial registration for Syrian TPS is December 16, 2013.  Applications must be post-marked by that date.  For more information, visit, and select “Temporary Protected Status” in the “Humanitarian” category.

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