DACA and DAPA: High court to decide legality of presidential action

President Obama’s attempt to move forward with new immigration relief is being challenged in federal court.

On January 19, 2016, the U.S. Supreme Court agreed to hear an important immigration case, the outcome of which could significantly impact the lives of millions of undocumented immigrants. President Obama's November 2014 Executive Action on immigration has been tied up in court and unable to move forward ever since its announcement. The U.S. Supreme Court's decision, which is expected in summer of 2016, will either give a thumbs up or thumbs down to his use of executive authority to implement the DAPA program and expand the DACA program.

Executive Action

Frustrated by the lack of action by Congress with regards to immigration reform, the president announced several initiatives for U.S. Citizenship and Immigration Services, known as USCIS, the federal agency that oversees lawful immigration to the US. The first of President Obama's initiatives was an expansion of Deferred Action for Childhood Arrivals, or DACA, which started in June of 2012.


Deferred action simply means that while official action could be taken by ICE to deport a person, ICE will not do so during the approved period of deferred action. Under DACA, certain people who arrived in the U.S. as children and meet other qualifications related to the pursuit of education and establish that that they are a productive, nonviolent member of society, can apply for deferred status for a two-year period, subject to renewal, during which they may also seek work authorization documentation.

President Obama wanted to expand the pool of DACA-eligible people and lengthen the deferral period to three years. In addition, he announced another program called Deferred Action for Parents of Americans and Lawful Permanent Residents, known as DAPA, which would allow certain undocumented parents of citizens or lawful permanent residents to apply for deferred action and work authorization for three years.

The federal lawsuit

Almost immediately after the president's November 2014 announcement, a coalition of 26 states sued to stop the president's immigration initiatives in the U.S. District Court Southern District of Texas. The judge issued an injunction, a nationwide order that put the expanded DACA and DAPA programs on hold pending resolution of the case, an order affirmed twice by the 5th Circuit Court of Appeals before the U.S. Supreme Court agreed to hear the case in January.

The Supreme Court will consider four main issues in the case:

  • Whether Texas and the other states who brought the suit have the right to do so
  • Whether the president had the legal authority to issue the orders
  • Whether the orders were in essence new agency rules that would require a period of formal public input before enactment
  • Whether the president adhered to the Constitutional requirement that he take care to faithfully execute the law

Potentially affected immigrants and their advocates will be holding their collective breaths until the U.S. Supreme Court hands down its decision on President Obama's attempt to establish DAPA and expand DAPA. In the meantime, USCIS continues to accept initial and renewal applications for the original DACA program.

Anyone with questions about the existing DACA program, what will happen if the U.S. Supreme Court allows the expanded programs to go forward or other legal issues related to immigration status should speak with an attorney to understand what steps are available to them. U.S. immigration law is extremely complex, so consulting with an immigration attorney is strongly advised.

From their office in Denver, Colorado, the attorneys of Hernandez & Associates, P.C., represent clients in the Denver metropolitan area, across the state and nationwide with a wide array of immigration matters, including DACA.