Farmworker Justice Immigration Update 4/22/16

Monday, April 18th, 2016 marked a historic day for the immigrants’ rights movement, when thousands of advocates nationwide traveled to the Supreme Court to rally in support of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which would grant temporary relief to millions of undocumented parents, and the expansion of the Deferred Action for Childhood Arrivals (expanded DACA) program. Inside the Supreme Court, the justices heard oral arguments in United States vs. Texas, the case that has temporarily suspended the implementation of DAPA and expanded DACA.

The Rally in Front of the Supreme Court of the U.S.

The brisk early morning air quickly warmed up once Kica Matos, the Director of Immigrant Rights and Racial Justice at the Center for Community Change and the MC for the day, took the stage and electrified both the massive crowd and atmosphere with excitement, hope, and perseverance. The steps of the Supreme Court were crowded with immigrant families and advocacy groups from over 26 states who filled the air with passionate chants, cheers, and music to send a clear message to the Court – treat our families with the respect and dignity we deserve. Read one attendee’s New York Times Op-ed titled, What I Will Do When I Get My Papers.

The powerful rally was fueled and propelled by inspirational speeches, heart-wrenching stories, and powerful music that symbolized the diversity of the larger movement. Speakers included immigrant and labor rights activists, members of Congress, and most importantly, undocumented youth and parents, who shared personal stories and urged the Supreme Court to vote to keep families together. The collective energy at the rally was at a constant high as fellow advocates met one another and rallied together in solidarity.

Many advocates and affected community members camped outside the Supreme Court the night before so they could attend the oral arguments. An estimated 45 immigrant families attended the oral argument, as did many lawyers from immigrants’ rights organizations.

The Oral Argument in the Supreme Court

In addition to hearing from lawyers for Texas and the Federal Government, the Justices heard from Tom Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund who represents 3 mothers who would be eligible for DAPA and are intervenors in the case. Counsel for the US House of Representatives (controlled by Republicans) was also given time to argue on the side of Texas that the programs should be permanently blocked.

Attorneys who attended the arguments have said that the Solicitor General and MALDEF did a good job defending the legality of the programs and arguing against Texas’s standing (right to sue based on a tangible harm) in the case. Most of the time during oral argument was spent discussing standing. There was also significant legalistic discussion around whether deferred action is a “status” and the meaning of “lawful presence” that highlighted just how confusing and complex immigration law is.

In an apparent dramatic development in the Supreme court, Texas seemed to have shifted its argument away from arguing that the Federal Government lacks authority to grant deferred action to a large number of people. Now it is arguing primarily that the Government doesn’t have authority to offer work authorization. One major problem with this argument is that the regulation that allows people with deferred action to apply for work authorization has been on the books since 1987. In addition, many other classes of people under immigration law receive work authorization under this regulation such as people with Temporary Protected Status or applicants for asylum. Invalidating that regulation would upend the immigration system and affect millions of other immigrants. For more information on the issues discussed during the oral argument, listen to AILA’s webcast or read the American Immigration Council’s blog.

What’s Next

It’s very hard to predict outcome of this case. Justices Ginsburg, Breyer, Sotomayor and Kagan appeared to be squarely on the side of the Federal Government. In one potential outcome, the five or more justices will decide that Texas and the other states lacked standing, the case will be thrown out and the programs would be likely to move forward sometime this summer. Since Justice Scalia passed away, there is another likely scenario, where there will be a 4-4 tie among the justices. In this scenario, the lower court decision suspending the programs would not be overturned and the case would be remanded – or sent back -- to the appellate court and district court for further litigation over the issues, which could last for another year or more. We expect a decision by the end of June. If there is a 4-4 decision, it may be released sooner.