The Aftermath of United States v. Texas

10 August 2016

On June 23, 2016, the Supreme Court issued a 4-4 ruling in the immigration case of United States v. Texas, blocking two “deferred action” programs announced by President Obama on November 20, 2014: extended Deferred Action for Childhood Arrivals (DACA Plus) and Deferred Action for Parents of Americans and Legal Residents (DAPA). The 4-4 ruling by the justices creates a non-precedential non-decision, upholding an injunction placed by a panel of federal judges in the Fifth Circuit Court of Appeals. While the future of these programs remains uncertain in the long term, the immediate effects are pronounced, as millions of qualifying young people (“Dreamers”) and parents who would have been able to request deferred action programs are unable to do so in the foreseeable future. The outcome of the ruling highlights the need for greater information about existing prosecutorial discretion tools, including a longstanding deferred action program on which DACA and DAPA are based.This essay examines 185 deferred action cases processed by the United States Citizenship Immigration Services (USCIS), a unit within Department Homeland Security (DHS or Department). While previous scholarship examines deferred action historically and in depth, this is the first piece to review cases under the Department’s current enforcement policy. The author’s goal is to provide advocates and policymakers with accurate information about the deferred action program outside of DACA (and what would have been DACA Plus and DAPA) and to facilitate a dialogue about the possibilities of advancing a robust deferred action policy for Dreamers, parents and others who present humanitarian equities. A second goal of this essay is to (re)address the continued transparency challenges faced by the deferred action program and recommendations for moving forward. Beyond the scope of this essay is an analysis of whether certain noncitizens may be currently eligible for relief outside of deferred action or a discussion on those who should qualify for immigration status under unrealized but critical legislative reforms.