Making Sense of Court Action on Immigration 

In November 2014, President Barack Obama announced a series of executive actions on immigration intended, among other things, to allow millions of unauthorized immigrants to avoid deportation. Pew identified how these efforts were likely to affect states and localities. Twenty-six states have since sued the government in federal court, and there is now a preliminary injunction blocking implementation of two executive action initiatives: expansion of the existing Deferred Action for Childhood Arrivals (DACA) program and creation of a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

DACA allows qualified young people, who came to this country as children, to temporarily avoid deportation; DAPA would provide this deferred deportation for certain parents of U.S. citizens or permanent resident children.

Amid this changing landscape, here are four things for states and localities to consider about how the ongoing litigation may affect them:

1. State and local officials disagree over the likely impact of the executive actions on their jurisdictions.

Texas, joined by 25 other states, sued the federal government to block implementation of two major provisions of the executive actions, arguing that allowing unauthorized immigrants to remain in the country would be harmful and costly to states. However, Washington, together with 13 other states and the District of Columbia, filed a brief in support of the federal actions. The brief asserted that states would not be harmed and instead would benefit economically from the actions. More than 70 local governments (including several in states that sued the federal government), the U.S. Conference of Mayors, and the National League of Cities, also filed briefs supporting the executive actions.

2. Unauthorized immigrants who are likely eligible for the programs are found in all states, but strong concentrations remain.

According to the Pew Research Center’s Hispanic Trends Project, 5 million unauthorized immigrants are estimated to be eligible to avoid deportation under DACA and DAPA. The 26 states that have sued the federal government are home to less than half (46 percent), or 2.3 million, of those who could qualify. However, the unauthorized population in these states is concentrated in Texas and Florida (over 1.1 million), while four others (Arizona, Georgia, Nevada, and North Carolina) each have 100,000 or more. Five of the suing states, however, have fewer than 5,000 of these immigrants.

More than half (54 percent), or 2.7 million, of those who could qualify for the programs live in the 24 states plus the District that are not suing to stop the executive actions. Of that total, 1.2 million (24 percent) live in California alone.  Among those jurisdictions, the 14 states and the District that filed a brief in support of the executive actions are home to approximately 43 percent of those who would qualify for the programs.

3. Despite the uncertainty, states and localities can choose whether and how to prepare for implementation.

A previous Pew analysis showed that state and local governments often play major roles in implementing federal programs such as DACA and DAPA, including outreach, documentation, education, and protection of potential applicants from fraudulent legal service providers.

In recent years, some states and localities have worked to prepare immigrants for DACA. In addition to leading outreach initiatives, they have helped applicants gather the necessary documentation and apply for the program. States also have passed laws to regulate immigration service providers and protect immigrants from fraud. After the executive actions were announced in November 2014, some states and localities began to similarly prepare for implementation of expanded DACA and DAPA.

The federal court injunction came just two days before expansion of DACA was to be implemented and could affect the planned implementation of DAPA originally slated for May 2015. Robust outreach efforts were already underway in many places to inform potentially eligible populations about the programs. With implementation on hold and federal planning and outreach halted by the injunction, state and local actors can choose whether to plan for potential implementation in the future.

4. Other parts of the executive actions continue to move forward.

Though expanding DACA to new populations and creating the DAPA program for parents are on hold, other facets of the executive actions announced in November continue. For example:

• The original DACA program remains untouched by the lawsuit; those who meet the original 2012 requirements can still make requests through the initiative. As of the end of December 2014, approximately 680,000 individuals had been granted deferrals under DACA.
• The federal government established new immigration enforcement priorities that direct enforcement officers to focus their efforts on those who pose threats to national security and public safety, as well as individuals convicted of crimes, including some misdemeanors. This guidance went into effect in January 2015.
• The White House Task Force on New Americans, created as part of the executive actions, continues to identify best practices for integrating immigrants into communities and to consider how to expand and replicate successful models. The task force is expected to release an Integration Plan in April 2015.
• New efforts announced in November 2014 to promote U.S. citizenship in 10 target states also remain in place. According to the latest available estimates, the Department of Homeland Security’s Office of Immigration Statistics has said that approximately 8.8 million legal permanent residents were eligible for naturalization.
• Efforts announced last November to streamline and improve the legal immigration system are moving forward.  For example, U.S. Citizenship and Immigration Services recently issued new regulations that will allow spouses of certain highly skilled H-1B workers to apply for employment authorization. The regulations take effect May 26.