Sunday, April 17, 2016

The Drama of / Debate on the Expansion of DACA and the New DAPA Heads to the U.S. Supreme Court

by Anish Vashistha

Once again it has been far too long since my last blog post. However, I've been working instead on building a published-case database going back to the beginning of 2015. The database may be found here, and it includes all immigration-related published decisions since January of last year until the present from the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the U.S. Department of Justice's Executive Office for Immigration Review's Board of Immigration Appeals ("BIA"), the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO"), the California Supreme Court, and the California Courts of Appeal. Having such a database would free the blog from the restrictions caused by having to summarize and to comment on every case that gets published.

For those who follow the blog closely and have now seen the published-case database, the lack of discussion for case opinions that were issued in December 2014 would likely be alarming. To calm those unnerved by this void, I will go ahead and summarize the relevant cases from that month. In U.S. v. Garcia-Santana, the Ninth Circuit held that for a State conspiracy statute to trigger the "Conspiracy" Aggravated-Felony deportability ground under Section 101(a)(43)(U) of the Immigration and Nationality Act ("INA"), such statute must contain as an element proof of an overt act in furtherance of the conspiracy. I previously wrote about that case, but the Ninth Circuit decided to withdraw its prior opinion dated February 20, 2014 and issue a new opinion on December 15, 2014. Separately, the BIA held in Matter of Velasquez-Cruz, that a foreign national's departure from the U.S. after having been convicted criminally in U.S. District Court for illegal entry interrupts the ten-year period of continuous residence required to be established to be eligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation").

Now that everyone is caught up with the latest published decisions, attention can be turned to what the U.S. Supreme Court will do in U.S. v. Texas, for which oral argument begins tomorrow. The case concerns of course the U.S. President Barack Obama's executive actions dated November 20, 2014 to expand the already-existing Deferred Action for Childhood Arrivals ("DACA Expansion") and the new Deferred Action for Parental Accountability ("DAPA"). Now, I have written previously about how the changing demographics in the U.S. have created an environment wherein the racially dominant group(s) in the U.S. feel that power may be shifting to other racial groups within the U.S. and how such perceived prospective power passing causes concerns within the racially dominant group(s) in the U.S. These concerns unsurprisingly spread from the narrow issue of Comprehensive Immigration Reform ("CIR") into mainstream politics and currently is playing a tremendous role in this year's presidential election.

To ensure that there is no shortage of drama, the passing of Associate Justice Antonin Scalia combined with the unlikelihood that the U.S. Senate will confirm President Obama's nominee to fill the vacancy in the ninth seat on the U.S. Supreme Court means that there is a chance that there could be four-four tie, thereby leaving the U.S. Court of Appeals for the Fifth Circuit's decision intact, i.e., no DACA Expansion or DAPA. Some take solace in that possible scenario because it means that there will not be a precedential decision from the U.S. Supreme Court on the issue that would disrupt the ability of President Obama or a future president from trying again to issue the same or similar executive actions on immigration.

Others, however, observe an opportunity: instead of foreseeing a four-four tie, they view a chance for a five-three win, leading to the overturning of the permanent injunction, the implementation of DACA Expansion and DAPA, and the issuance of a precedential decision protecting the president's power to issue such executive actions on immigration. Such a line of thinking involves the reliance on Chief Justice John Roberts' not voting with the rest of the conservatives.

Of course there are other possible scenarios, but they do not lead to the level of drama that a conclusive decision would have, and this year has shown that the American people have not yet had their fill of political drama.