Frequently Asked Questions Regarding the Supreme Court's 4-4 Split on Immigration Page: 2 of 3
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are low priorities for enforcement are generally unlikely to be placed in removal proceedings. However, these aliens
remain subject to removal because they are unlawfully present, and the Executive has discretion in setting its
enforcement priorities. (Congress has, however, enacted legislation which prescribes that the Executive is to give
priority to the removal of "criminal aliens.")
What does this mean for "Dreamers" and DACA?
Many "Dreamers"-who take their name from the various Development, Relief, and Education for Alien Minors bills
that have been introduced over the years to grant this population of unlawfully present aliens a pathway to citizenship-
are eligible for the initial DACA program, implemented in 2012. The injunction in Texas does not purport to bar
implementation of this program. Instead, it bars a proposed expansion of DACA to cover aliens who were 31 years of
age or older at the time when DACA was implemented, or who were brought to the United States at later dates than
were covered by the initial DACA program. The proposed DACA expansion would also have provided for eligible
aliens to be granted deferred action and work authorization for three years, instead of two years. Insofar as many
Dreamers qualify for the initial DACA program, they are unlikely to be directly and immediately affected by the
Supreme Court's decision in Texas in any way other than having to apply for renewal of their grants of deferred action
and work authorization every two years, instead of every three years. However, it is possible that the Fifth Circuit's
decision on DAPA and the DACA expansion, which remains binding precedent within that jurisdiction, could prompt
future legal challenges to the initial DACA program that could affect Dreamers more directly, as noted in an earlier
What about the parents of "Dreamers"?
Some advocates have called for the parents of Dreamers to be granted deferred action and work authorization. However,
no such initiative has been implemented for them, as a group, to date. Dreamers are not U.S. citizens or lawful
permanent residents (LPRs), so their parents would not have been eligible for DAPA, even had that initiative been
implemented, unless the parents also have a child who is a U.S. citizen or LPR. Some parents of Dreamers could,
however, be granted deferred action on an individual case-by-case basis, outside of any broader deferred action
initiative. They could also potentially qualify for other relief from removal, as discussed below.
Are there other avenues for providing relieffrom removal to the aliens covered by DAPA and DACA?
Other statutory or non-statutory avenues of relief from removal may exist, particularly for individual aliens, on a case-
by-case basis. The Immigration and Nationality Act (INA) provides for certain types of relief from removal that may be
made available to individual aliens who qualify for them under the statutory and regulatory criteria. For example,
Section 212(a)(9)(B)(v) of the INA permits the Executive to waive certain bars that can serve to block the adjustment to
LPR status of aliens who are eligible for a family- or employment-based visa, but have been unlawfully present in the
United States for more than 180 days. Similarly, Section 240A(b) of the INA permits the Executive to grant
cancellation of removal and adjustment to LPR status to aliens who show that their removal would result in
"exceptional and extremely unusual hardship" to a spouse, parent, or child who is a U.S. citizen or LPR. Other avenues
of potential relief for individual aliens are not expressly noted in the INA, but have historically been seen to be within
the prosecutorial or enforcement discretion of immigration authorities. These include: not initiating removal
proceedings against aliens who are "low priorities" for removal; seeking to have removal proceedings administratively
closed; and not executing final orders of removal.
Implementation of any large-scale, "class-based," relief programs, like DAPA, could, however, be limited insofar as the
Fifth Circuit's decision in Texas remains precedent within that jurisdiction. In that decision, the Fifth Circuit took the
view that the provisions of the INA which the Executive cited as the basis for DAPA, in particular, cannot reasonably
be construed to authorize this program because Congress could not have intended to delegate to the Executive "a policy
decision of such economic and political magnitude" as would be involved in permitting approximately 5 million
unlawfully present aliens to remain in the United States indefinitely and work here. Similar logic could potentially be
invoked if the Executive were to purport to grant parole in place or extended voluntary departure to a large group of
aliens (e.g., potential DACA beneficiaries). Indeed, the preliminary injunction in Texas extends to "all aspects or
phases [of the challenged programs] (including any and all changes)," although it is unclear what might be
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Frequently Asked Questions Regarding the Supreme Court's 4-4 Split on Immigration, report, June 24, 2016; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc855866/m1/2/: accessed February 17, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.