Supreme Court only first hurdle for Obama's immigration orders

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The U.S. Supreme Court on Monday will hear arguments on a case that could decide the fate of President Barack Obama’s sweeping executive actions shielding an estimated 5 million people from deportation.

Texas and 25 other states are seeking to block two policy programs that would grant eligible unauthorized immigrant parents and children temporary legal stay, calling the programs part of an unlawful government overreach. Federal lawyers for Obama, who pledged to overhaul the nation’s immigration laws, say the initiatives fall well within the scope of his power.

Both sides are confident the court will rule in their favor. But for immigrant advocates, a victory is less clear. Even if the initiatives are allowed to move forward, the Obama administration would have only six months to roll them out. And all that work could be undone when a new president is elected in November — or if immigrant families don't apply because they believe their applications could be used against them.

Given the high stakes and tight time constraints, immigrant advocates are left with an uncomfortable question: Is it too late for Obama’s immigration actions?

Comprehensive immigration reform was a major component of Obama’s platform when he first campaigned for president in 2008, and one that many immigration advocates believe he has failed to achieve. Thus, Obama’s legacy on the issue, lawyers and foreign policy experts say, depends on the success of these initiatives.

But all three Republican presidential candidates oppose the programs and with potential front-runner Donald Trump stoking anti-immigrant rhetoric, many experts and immigration advocates say potential applicants could hold off on signing up for the deferred action programs until the next president is elected.

“I think immigration advocates will be in a bit of a bind,” said Muzaffar Chishti, the director of the Migration Policy Institute office at the New York University School of Law. “On one hand they will want this to be… a running program because they’ve invested so much political capital in making it happen. So for a large number of those people this is finally a dream come true. On the other hand, in good conscience, they cannot advise their clients that there is no risk in applying.”

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High court's questions

The president’s executive order, issued in November 2014, created the Deferred Action for Parents of Americans and Lawful Permanent Residents program, known as DAPA, which would grant unauthorized immigrant parents temporary reprieve from deportation and would allow them to apply for work permits.

It also expanded the Deferred Action for Childhood Arrivals program, or DACA, implemented in 2012, to more than a million new people who entered the country illegally as children. As of December, more than 713,000, or 93 percent of applicants, had received temporary legal stay through DACA, and several surveys and analysis found that it improved the lives of recipients and caused wages to rise as applicants received jobs that matched their skill sets.

In weighing whether the initiatives can continue, the Supreme Court is to consider three main questions:

— Does the president have prosecutorial discretion to forego the deportation of the millions of immigrants who qualify?
— Is Obama neglecting his constitutional duty to enforce immigration policies?
— Do Texas and the other states have standing to sue the federal government?

Lower courts have heard the case on the premise that the states have the right to sue as they will incur the burden of implementing the programs. But the Obama administration asked the Supreme Court to reconsider whether the states can file suit against the federal government.

Supporters of the executive orders say legal precedents favor the Obama administration's actions because past presidents — both Democrat and Republican — have used deferred actions policies to shield specific groups from deportation.

Tom Jawetz, vice president of immigration policy for the Center for American Progress, said the court may not even get that far. He thinks the court will dismiss the case because the states will not be able to prove that they are being negatively impacted by the programs.

"I think the states have a problem on standing," Jawetz said.

Opponents of the executive orders say the power of regulating immigration is reserved for Congress.

“The real question is whether the president can act unilaterally on immigration, ignore the rule-making process and allow millions of law-breaking foreigners to stay here and receive benefits,” said Jon Feere of the Center for Immigration Studies, which advocates for stricter immigration enforcement. “I think the court will have difficulty siding entirely with the Obama administration due to the fact that the court has said repeatedly that immigration policy is shared between the legislative and executive branch.”

The death of Supreme Court Justice Antonin Scalia in February raised the possibility of a split decision, which would uphold an injunction handed down by the lower courts.

That has left immigrant rights supporters in the unusual situation of banking on the votes of two of the court’s traditionally conservative justices — Anthony Kennedy and Chief Justice John Roberts — for a ruling in their favor.

In Roberts, immigration advocates see a chief justice who will dispassionately consider the legal questions at hand and who has previously cast votes contrary to popular conservative opinion, most notably in upholding the Affordable Care Act. They also see hope in Kennedy’s previous rulings on immigration, which have given deference to the federal government over local entities.

But given the high political tension around the issue — and, more recently, around Obama’s nomination of Merrick Garland to fill Scalia’s spot on the bench — the court could also choose to punt the case back to a lower court for more information. By doing so, it would avoid a landmark decision until a later time when, presumably, it would avoid the pressure of presidential election politics and could consider the topic with a full court.

“At the end of the day, we need five justices,” Jawetz said. “We needed five justices two months ago and we need five justices today.”

Pro-immigration protesters rally in front of the U.S. Supreme Court on March 18 in Washington, D.C. The high court will hear arguments in U.S. v Texas, a case that will decide whether to grant deferred action status to certain undocumented immigrants who have lived in the United States since 2010 and have children who are American citizens. Photo by Mark Wilson/Getty Images

‘Can’t turn on a switch’

The court is expected to rule by June, but even if justices allowed the deferred action programs to proceed, that decision would only be the first obstacle in a possible race against the clock. The administration would have only six months to implement a system of intake and review processes that could attract millions of people.

And if the launch of DACA in 2012 is any indication, lawyers and experts said, the rate of applications will move slowly. By the time Obama announced an expansion to DACA in November 2014, less than half of the 1.2 million people eligible for the program had obtained its benefits, two years into the program.

“You can’t just turn the switch on overnight,” Chishti said. “If you have to give yourself time to prepare to get machinery going, whether this will be enough time for this presidency is of some concern.”

Critics of the president’s executive order said the time crunch would also raise questions of security and safety. As an example of that lack of scrutiny, Feere pointed to the case of Jesus Rangel-Hernandez, an immigrant charged with murder in North Carolina in the deaths of four people. Rangel-Hernandez was spared deportation under DACA, though he was listed as a gang member in a federal database before applying for the program.

“Virtually everyone who has applied to DACA has been granted the status,” Feere said. “How many problematic people would receive this quasi status?”

But immigrant advocates say cases like Rangel-Hernandez are few. Their greater concern is whether immigrants will come forward at all.

Trump has said he would require Muslims in the country to register in a database. If he won the White House in November, immigrant families fear they may be tracked after applying for the deportation relief programs.

Immigrant rights supporters say they trust that U.S. Citizenship and Immigration Services will keep their promise of not sharing the information of applicants with Immigration Customs Enforcement, but the issue is of some concern.

“What worries me is that the rhetoric will overpower the hope they’ve (families) been holding onto for so long,” said Maria Reza, a member of the University Leadership Initiative, an immigrant rights group at the University of Texas.

Felipe Ortega participates in the rally held by Workers Defense Project at the Texas Capitol on February 21, 2015, to protest an injunction on DAPA and the expansion of DACA. Photo by Laura Skelding

Immigration as a mobilizer

Reza is among immigrant advocates who say it is not too late for Obama’s executive actions. Rather than seeing the presidential election as a looming threat, many consider it a catalyst for political involvement.

A Republican president throwing out the deferred actions programs “is a possibility, but that is why Latino voters need to vote,” said Barbara Hines, an Austin immigration lawyer and former director of the immigration clinic at the University of Texas.

On campus, the University Leadership Initiative, is preparing to canvas neighborhoods in the Austin area to ask residents to vote for candidates who support deferred action.

The group sees the ruling as a way to apply pressure, essentially daring any presidential candidate to oppose the program and risk alienating the more than a million eligible voters who share homes with a DAPA-eligible person, according to the Center for American Progress.

“Even if there’s a negative ruling (from the Supreme Court),” said Sheridan Aguirre, the group’s president, “we can still say, ‘Hey, with a pro-immigrant family candidate, there’s still more things to be done.’”

But those advocating for stricter immigration policies are just as motivated by the elections and see a silver lining in that their candidates will be able to tackle the issue head-on.

“What this means is that the issue of immigration is guaranteed to be central in this presidential election,” Feere said. “All too often, presidential candidates like to avoid immigration altogether. The timing of this case virtually guarantees that there will be a debate on whether or not DACA and or DAPA will be continued.”

Sheridan Aguirre, left, and Juan Belman of Austin hold posters during an ICE Out of Austin rally held outside of the Travis County Jail in Austin on July 6, 2015. The protest was to demand the City of Austin and Travis County end participation in the Secure Communities (S-Comm) program that transfers undocumented immigrants to Immigration and Customs Enforcement (ICE) for deportation. Photo by Rodolfo Gonzalez

Faces of DAPA

If the U.S. Supreme Court rules in favor of President Barack Obama’s controversial executive actions on immigration, two programs would grant temporary reprieve from deportation to an estimated 5 million immigrant children and parents in the country illegally. Here are a few of their stories.

UT senior Maria Reza is qualified for DACA and hopes her parents will qualify for DAPA. Photo by Laura Skelding

UT senior Maria Reza is qualified for DACA and hopes her parents will qualify for DAPA. Photo by Laura Skelding

Maria Reza

For Maria Reza, visits from her mother are rare. The University of Texas student received temporary legal stay through the implementation of the Deferred Action for Childhood Arrivals program. But her mother, who lives in Houston and qualifies for the program because her younger children were born in the U.S., is still waiting for the Supreme Court ruling on the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA.

Reza said that for her mother, the more than 160-mile drive from Houston to Austin to visit is risky because she could be pulled over for a traffic infraction and possibly be deported if officials learn she is in the country illegally.

In the year and a half since the creation of DAPA, her mother’s faith has wavered. During a recent conversation about the Supreme Court hearing, Reza’s mother said she saw no point.

“It was a big shock because I thought she was still holding out hope,” Reza said. “Hearing her be disappointed and disillusioned, it broke my heart even more because I knew she wasn’t the only person to feel that way. So many parents were happy (when it was announced) to feel it would be some sense of security. Now, one and a half years later, I don’t know if they’re still feeling that faith.”

But Reza remains hopeful. It’s the only way her mother’s life will improve. And deep down, she said, she thinks her mother also is pinning her faith on the court’s decision.

“The one thing our community can never lose, we never lose hope,” she said.

Sheridan Aguirre, a 21-year-old senior at the University of Texas, is a communications consultant with United We Dream and a leader in the University Leadership Initiative, a UT immigrants rights group. Aguirre is a beneficiary of the DACA program implemented in 2012. His parents, who are parents to U.S. citizens (his younger siblings), would now be eligible for DAPA. Photo by Laura Skelding 

Sheridan Aguirre, a 21-year-old senior at the University of Texas, is a communications consultant with United We Dream and a leader in the University Leadership Initiative, a UT immigrants rights group. Aguirre is a beneficiary of the DACA program implemented in 2012. His parents, who are parents to U.S. citizens (his younger siblings), would now be eligible for DAPA. Photo by Laura Skelding 

Sheridan Aguirre

When Sheridan Aguirre’s mother began working at a Wendy’s in Fort Worth 10 years ago to help support her family, she started earning $8 an hour. A decade later she makes only $11 an hour.

But now, she is waiting for a decision on DAPA, which Aguirre said could grant her a work permit and give her the chance to fulfill her dream of starting her own business.

Aguirre, a UT student, still recalls the excitement in his mother’s voice when the initiative was announced. His parents could receive the benefits because his younger siblings were born in the United States. “She knew this was the relief she’d been waiting for,” he said.

Despite how long the legal battle over the program has dragged on, Aguirre and his parents remain hopeful.

There’s an empty shop his mother has her eyes on, he said. “We have to remain optimistic because otherwise it can impact you from inside and can crush your daily life,” Aguirre said.

Irma Hernandez, 39, whose 7-year-old daughter was born in Texas, stands to benefit from President Obama's sweeping immigration orders that would shield 5 million people from deportation. "There's thousands and thousands just like me begging God that something good happens." This photo is from a Nov. 2015 march to oppose immigration detention centers in Texas.Photo by Amayeli Arnal-Reveles\/ Ahora Si

Irma Hernandez, 39, whose 7-year-old daughter was born in Texas, stands to benefit from President Obama's sweeping immigration orders that would shield 5 million people from deportation. "There's thousands and thousands just like me begging God that something good happens." This photo is from a Nov. 2015 march to oppose immigration detention centers in Texas.
Photo by Amayeli Arnal-Reveles/ Ahora Si

Irma Hernandez

Irma Hernandez’s biggest wish is to see her elderly parents again. She has not seen them since the day she left her hometown of Cuscatlan, El Salvador, 10 years ago to come to the United States.

Because Hernandez, 39, is in the country illegally, she cannot go home to see her ailing parents because she would not be able to return to Austin.

“I came here so I could help them,” Hernandez said.

Hernandez, who is the mother of a 7-year-old daughter born in Texas, shed tears of joy when she learned about the DAPA program in 2014. It meant she might be able to see her parents again before they died, she said. But that joy turned to gloom when a Texas-led coalition of 26 states challenged the program’s legality.

“I thought, ‘Oh my God. This can’t be happening,’” she said.

In the time since, Hernandez has joined the Workers Defense Project in Austin to educate people about the plight of immigrants and how the deferred action initiatives would benefit them. It would help her stop fearing separation from her Texas-born daughter if she was deported, she said, and would give her a chance at finding a better job.

She says she thinks about the outcome of the Supreme Court case all the time and fears what would happen if the programs are blocked. Although speaking out can be dangerous given her residency status, she said, she does so to show others why the programs are necessary.

“There’s thousands and thousands of others just like me begging God that something good happens,” she said. “I want to be the voice for those people who can’t speak out.”