DOJ Petitions for New Supreme Court Hearing: DACA Plus and DAPA
The Department of Justice has filed a petition for a rehearing with the Supreme Court on the United States v. Texas case. This is the DACA/DAPA case that was decided with a 4-4 deadlock last month. That tie rendered the DACA plus and DAPA programs unable to go into effect. The decision left the ruling of the Fifth Circuit Court of Appeals in effect. The Fifth Circuit had upheld the decision of the district court in Texas, in which the federal judge had ruled the programs could not go into effect. The reason was that the Obama Administration had not followed the procedures of the Administrative Procedure Act for promulgating and implementing rules with President Obama’s executive actions for DACA plus and DAPA programs.
The reason that there were eight Supreme Court justices ruling on the case instead of the traditional nine is because Justice Antonin Scalia died during the term and a replacement has not yet been voted on and approved by the Senate. The Department of Justice is petitioning for a nine member court to hear its case on behalf of DACA plus and DAPA. It states in its petition, “[t]his Court therefore should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide in-junction of such significance.”
STEM OPT Extension:
Court Grants 90 Day Extension of STEM OPT Rule
The US District Court for the District of Columbia ordered that the vacatur of the 17-month STEM (Science Technology Engineering Mathematics) OPT extension be stayed until May 10, 2016. The Department of Homeland Security motioned for that relief from the court’s order in August 2015. The court had held in August 2015 that the DHS rule granting 17-month extensions on OPT for F-1 visa STEM students was invalid. The rationale was that DHS had promulgated the rule without going through the mandated rule, notice, and comment procedure. At that time, the court decided that vacating the rule granting 17-month extensions would cause substantial hardship for qualifying students and problems for their employers. Therefore, it decided to keep the rule in place until February 12, 2016.
The reason that the court has extended the rule for 3 additional months is that 50,500 public comments were received when DHS gave Notice of Proposed Rulemaking. The court called this “unexpected and unprecedented.”
Many STEM students rely on their OPT time to play the H-1B lottery and increase their chances or to gain invaluable experience related to their field of study before returning to their home countries. The focus on STEM is not exclusive to immigration. Rather it is a trickle-down from a nationwide emphasis on promoting students to enter and succeed in those courses of study.
Fifth Circuit Denies New DACA and DAPA
The US Court of Appeals for the Fifth Circuit denied an appeal of a preliminary injunction of President Obama’s executive actions for expanding Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans (new DACA and DAPA) on November 9. A federal judge in Texas struck down the executive actions in February of this year and the Department of Justice has been litigating against states opposed to the implementation of the executive action programs. The decision was divided, but it means that the executive action programs remain unusable. The Obama Administration is expected to seek an immediate review of the decision by the US Supreme Court.
On November 20, 2014, President Obama delivered a speech and unveiled a series of executive actions to improve the immigration system. New DACA and DAPA received most of the attention because of the effects it was scheduled to have on millions of people living in the United States without status. The programs are not immigration status. Rather, they were supposed to provide temporary protection to accepted applicants and work authorization. It was supposed to benefit individuals without a criminal record and not priorities for removal. The programs were nixed by a federal judge before implementation and the millions counting on the viability of the programs have to continue to wait. The executive actions were a response to Congressional inaction over years in implementing legislative immigration reform.