The Supreme Court puts im­mi­gra­tion re­form in the hands of the next pres­i­dent

▶▶A Supreme Court de­ci­sion kicks the can to 2017 ▶▶“For the com­mu­nity that is im­pacted▶ by this, it is life and death”

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A dead­locked Supreme Court has ef­fec­tively squashed any chance of sig­nif­i­cant im­mi­gra­tion re­form be­fore Pres­i­dent Obama leaves of­fice in Jan­uary. On June 23, a 4–4 vote by the jus­tices left in place an in­junc­tion block­ing Obama’s plan to shield from de­por­ta­tion mil­lions of un­doc­u­mented im­mi­grants whose chil­dren are U.S. cit­i­zens or le­gal res­i­dents. The plan would also have al­lowed those im­mi­grants to ap­ply for work per­mits. The court’s de­ci­sion re­turned the is­sue to U.S. Dis­trict Judge An­drew Ha­nen, who in Fe­bru­ary blocked the pro­gram from go­ing into ef­fect na­tion­wide while he con­sid­ers a chal­lenge from 26 states led by Texas, which ob­jects to pay­ing as­so­ci­ated costs.

The es­ti­mated 3.6 mil­lion un­doc­u­mented im­mi­grants who would have qual­i­fied un­der the pro­gram, known as De­ferred Ac­tion for Par­ents of Amer­i­cans, re­main in limbo. So do their em­ploy­ers. Busi­ness groups sub­mit­ted two am­i­cus briefs in sup­port of DAPA to the Supreme Court.

Bob Done­gan, pres­i­dent of the Seat­tle-based restau­rant chain Ivar’s, joined one of the briefs. When he be­gan us­ing the govern­ment’s E-Ver­ify sys­tem to check em­ploy­ees’ im­mi­gra­tion sta­tus in 2014, Done­gan learned that 109 of his 1,200 work­ers were un­doc­u­mented. “There were peo­ple who had worked for us for 20 years,” he says. “These peo­ple are great em­ploy­ees. We know their kids. We know their par­ents. It is not fair for these peo­ple not to be in­cluded in hav­ing the right to work.” He let them go but of­fered to cover their lawyers’ fees if they ap­plied for res­i­dency. Nine have since gained le­gal sta­tus and come back to Ivar’s. Says Done­gan: “Ev­ery one of the nine has been pro­moted into a man­age­ment job, and we have an­other 30 pend­ing.”

The Obama ad­min­is­tra­tion has un­til late July to pe­ti­tion the court for a re­hear­ing, but it hasn’t in­di­cated whether it will. Ha­nen has sched­uled a sta­tus con­fer­ence with lawyers for Aug. 22, af­ter which he’s ex­pected to set a timetable for hear­ing the case in his Brownsville, Texas, court­room. That will open the next phase of wran­gling over the fate of about

a third of the es­ti­mated 11 mil­lion un­doc­u­mented im­mi­grants in the U.S.

Congress has spent more than a decade de­bat­ing im­mi­gra­tion re­form. It has re­peat­edly failed to pass leg­is­la­tion and has showed no ap­petite to try again be­fore the Novem­ber elec­tion.

No one ex­pects the Obama ad­min­is­tra­tion to suc­ceed in per­suad­ing Ha­nen to let DAPA pro­ceed. The judge, an ap­pointee of Pres­i­dent Ge­orge W. Bush, has sparred with Jus­tice De­part­ment lawyers, even bar­ring some from rep­re­sent­ing the govern­ment in this case. He’s said he may or­der Jus­tice De­part­ment at­tor­neys mak­ing court ap­pear­ances in any of the states that are part of the DAPA law­suit to take manda­tory ethics classes. Ha­nen has also in­di­cated he may force the fed­eral govern­ment to hand over the names, ad­dresses, and other con­tact in­for­ma­tion for thou­sands of peo­ple who signed up for an ear­lier Obama pro­gram, De­ferred Ac­tion for Child­hood Ar­rivals.

Fed­eral courts have al­lowed DACA, which gives some un­doc­u­mented im­mi­grants who came to the U.S. as chil­dren pro­tec­tion from de­por­ta­tion, to move ahead de­spite re­peated chal­lenges. DAPA sup­port­ers could chal­lenge Ha­nen’s na­tion­wide in­junc­tion against it in other, more lib­eral, cir­cuits, like the Ninth, which cov­ers Cal­i­for­nia. “One could imag­ine that there will be judges in other parts of the coun­try that don’t think it’s proper for law for the en­tire coun­try to be set by a sin­gle dis­trict court judge,” says Bri­anne Gorod, chief coun­sel for the Con­sti­tu­tional Ac­count­abil­ity Cen­ter, a pub­lic-in­ter­est law firm and think tank in Wash­ing­ton.

If Ha­nen rules against DAPA, the Obama ad­min­is­tra­tion could ap­peal the de­ci­sion back up to the Supreme Court. Yet the case could stretch into next year, and re­gard­less, the bench will likely re­main split un­til a ninth jus­tice is ap­pointed to fill the seat left va­cant by the death of Jus­tice An­tonin Scalia. Se­nate Ma­jor­ity Leader Mitch McCon­nell has re­fused to con­firm any­one un­til a new pres­i­dent is sworn in. “You have a se­ri­ous case with huge na­tional im­pact that the court could not de­cide based on staffing is­sues, ba­si­cally,” says David Leopold, for­mer pres­i­dent of the Amer­i­can Im­mi­gra­tion Lawyers As­so­ci­a­tion.

Hil­lary Clin­ton has pledged to pro­ceed with DAPA if she’s elected and would be ex­pected to nom­i­nate a lib­eral jus­tice to Scalia’s seat. Clin­ton’s likely op­po­nent, Repub­li­can Don­ald Trump, called DAPA “one of the most un­con­sti­tu­tional ac­tions ever un­der­taken by a pres­i­dent” and has said he’d de­port un­doc­u­mented im­mi­grants if elected.

Al­though the im­mi­grants di­rectly pro­tected by DAPA can’t vote, their U.S. cit­i­zen chil­dren can. “For the com­mu­nity that is im­pacted by this, it is life and death,” says Ben Mon­ter­roso, ex­ec­u­tive di­rec­tor of Mi Fa­milia Vota, which reg­is­ters Latino vot­ers. He says young peo­ple are be­com­ing par­tic­u­larly en­gaged in this year’s elec­tion: “If they don’t have par­ents at risk of be­ing de­ported, they have friends and rel­a­tives who are.” Af­ter the Supreme Court opinion was re­leased, ac­tivists blocked a thor­ough­fare in down­town Phoenix. Four were ar­rested.

Some ad­vo­cacy groups are urg­ing the White House to do what it can now in the ab­sence of DAPA, in­clud­ing curb­ing border raids and al­low­ing more mi­grant de­tainees to post bond. Says Marisa Franco, a Phoenix com­mu­nity or­ga­nizer who last year co-founded Mi­jente, a Latino ad­vo­cacy group: “If there is no re­lief, then the ad­min­is­tra­tion shouldn’t be throw­ing the book at im­mi­grants.”

Josh Eidel­son and Karen Weise

The bot­tom line The fate of a pro­gram to deal with mil­lions of un­doc­u­mented im­mi­grants in the U.S. prob­a­bly won’t be de­ter­mined be­fore the elec­tion.

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