This is the month that we have all been waiting for, the time for the Supreme Court to decide on the legality of the DAPA and expanded DACA programs (United States v. Texas, Docket #15-674). With 8 justices only as the Republicans refuse to make a move forward with the nomination of Judge Merrick Garland, the President’s choice, the vote could go 4-4, which would mean that the decision of the Fifth Circuit Court of Appeals upholding Texas District Court Judge Andrew Hanen’s temporary stopping of the program would be upheld. However, the hope and belief on this end is that the decision will go the President’s way 5-3 if only on the issue of standing – whether the State of Texas has actually suffered such an injury which would allow it to bring a suit to court. In the oral argument of April 18, 2016, the question of whether Texas would suffer any injury at all was asked by Justice Sotomayor who pointed to the Texas affidavit estimating financial losses in dispensing drivers’ licenses to the approximate 5 million people who would benefit under the programs since they would have to ramp up their services, and asking why they would have to ramp up, why couldn’t they just let the people wait in line, that there was already a built-in profit of $25 for issuing a license, that 5 million people were not going to walk into DMV in one day, and that the numbers were going to be much less because not everybody was going to want to license to start with. Even if there was to be financial loss, Justice Breyer brought up the cases of Frothingham v. Mellon and Massachusetts v. Mellon in which the federal government had given something to some people and other people wanted to sue because they said they would have to pay more money and the latter side lost as they did not have the kind of interest that gave them standing just on the basis that as taxpayers, they would have to spend more money. The swing vote is expected to be Chief Justice Roberts who in the past has been a strong advocate of requiring concrete injury for parties to sue but who appeared in early parts of the argument to weaken on the issue in asking the U. S. Solicitor General pointed questions on why Texas would not have standing if, even if it decided not to issue licenses to the beneficiaries of the programs, it would find itself in litigation with either the U. S. government or the intervenors. The decision is widely expected by the end of June with one organization even predicting June 28th.

This article © 2016 Alan Lee, Esq. Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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