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Immigration Executive Action Headed to the High Court


After Congress’ inability to pass immigration reform of any kind, there was much excitement in the immigrant community when, as a result, President Obama announced immigration executive action in November 2014. Among many other improvements to our broken immigration system, the announcement called for deferred action and three-year work authorizations for nearly 4.3 million undocumented parents of U.S. citizen children.

Shortly after the executive action announcement, 26 states, led by Texas, filed suit, challenging the President’s authority and alleging undue financial burdens on the states. As a result, a district court in Texas ordered an injunction on the executive action programs days before its scheduled implementation in February 2015.

Following the injunction, the Administration appealed to the 5th Circuit Court of Appeals. In a 2-1 decision the Court ruled against the President this week, upholding the lower court’s ruling that the Administration had not provided required and adequate public notice prior to attempting to change federal enforcement policies.

The Administration and the Department of Justice disagree with the 5th Circuit’s decision and are seeking review by the U.S. Supreme Court. The Administration remains hopeful the high court will accept the case and hear it in the spring of 2016 for a ruling in June before the Justices leave for the summer.

Time is running out and the political grapevine has it that the lower courts deliberately delayed their decisions in an effort to narrow the window for the Administration to get the case before the Supreme Court.

The Administration must file it petition by the end of November. Notwithstanding potential opposition from Texas, including requests for extensions to oppose, the Supreme Court meets in private conference on January 8, 15 and 22 to make decisions what additional cases, if any, to hear.

If the Supreme Court accepts the case and rules in favor of the Administration, the program would be implemented in the Summer of 2016, with just a few months left in Obama’s term. Although the President claimed that remaking immigration laws was among his top second-term priorities, his political fight to provide relief for millions of undocumented person in the United States has resulted in only modest gains.

While the opponents of executive action, such as Senator Grassley opine that “the President simply can’t rewrite the country’s immigration laws,” proponents, such as Rep. Luis Gutierrez (D-IL) opines “the law and common sense are so clearly on the president’s side that it is only a matter of time before these deferred action programs are fully implemented.”

Whatever your opinion may be, the high court’s word will be final.


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