Against the hopes of the approximate 5 million undocumented immigrants who would gain a three-year stay from removal proceedings with work authorization and their supporters, the Supreme Court tied 4-4 on the morning of June 23, 2016, allowing the lower court ruling of Texas U. S. District Court Judge Andrew Hanen and the Fifth Circuit Court of Appeals to stand which blocked the Administration’s immigration initiatives, Deferred Action for Parental Accountability (DAPA) and an expanded Deferred Action for Childhood Arrivals (DACA). In a one sentence per curiam decision, the Court declared, “The judgment is affirmed by an equally divided Court.” Many advocates including this writer had thought that there was a good possibility that the Court might vote for the programs, citing the issue of standing and the arguments that had addressed that issue in the oral argument of April 18, 2016 (See our article “Will The Supreme Court Rule 5-3 In US v. Texas – And If So, Why?” ). Many had hoped that although Chief Justice Roberts had sharply questioned the U. S. Solicitor General on the question, he would support the programs in light of his past history of demanding concrete damage for parties to have standing to sue, and both Justices Sotomayor and Breyer’s later well-placed questions and attacks on the subject to the Texas Solicitor General. Although the per curiam decision did not indicate the vote split, it can be assumed that those in favor of the programs were Justices Ruth Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, while those opposing were Chief Justice John Roberts, Anthony Kennedy, Samuel Alito, and Clarence Thomas.

While the Supreme Court’s decision was not a vote on the merits of the case, it has presumably ended the hopes of immigrants for now. The case will now go back to Judge Hanen for a decision on the merits, and there is little to no hope that he would reverse his views so aptly expressed in his prior decision. The burden will now fall upon the next Democratic president to enact immigration relief with the cooperation of Congress, or to resurrect a more limited relief program that would be less open to attack.

If anything, the decision places into sharp focus the choices facing the electorate in November. The Republicans behind their presumptive flag bearer, Donald Trump, have declared war on all undocumented immigrants in this country, and even against intending legal immigrants of the Muslim faith or, in his latest fallback position, from those areas from which they come. The Democrats behind their presumptive nominee, Hillary Clinton, have promised immigration relief as a first priority. While this has been a very disappointing day for immigrants and their supporters, it should charge them with new energy to get out the vote in November. In the meantime, the President may decide to discontinue his missive to DHS to aggressively go after those recent arrivals who lost their cases or did not attend hearings in hopes of stopping any summer surge of undocumented immigrants from Latin America and Mexico since his gambit of showing toughness in exchange for better consideration of his programs did not work.

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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